Fritz Miot has lived in California for fifteen years under Temporary Protected Status, working in an Alzheimer's research lab while managing a diabetes diagnosis that Haiti's collapsed healthcare system can't treat. On June 25, 2026, the Supreme Court told him a federal court isn't allowed to ask whether the government even followed its own rules before ending his status — not whether he loses on the merits, but whether anyone can look at all.
In the second half of our emergency two-part season opener, Gwen and Marc dig into Mullin v. Doe: how "no judicial review of any determination" swallowed a mandatory consultation requirement, why the State Department told DHS one thing and the public another, and what Justice Thomas's solo concurrence is quietly setting up for a future case. Slaughter closed the check inside the agency. Mullin closes the one outside it.
00:00:14 --> 00:00:17 Hello, and welcome to Administrative Remedies,
00:00:17 --> 00:00:19 because you can't fix what you don't understand.
00:00:19 --> 00:00:21 Brought to you in part by the University of Tulsa
00:00:21 --> 00:00:24 College of Law. I'm Gwendolyn Savitz, an associate
00:00:24 --> 00:00:26 professor here at TU and the associate dean of
00:00:26 --> 00:00:28 research and intellectual life. And I'm Mark
00:00:28 --> 00:00:31 Rourke. I'm the dean of the College of Law. We'll
00:00:31 --> 00:00:33 be breaking down complex doctrines with real
00:00:33 --> 00:00:35 -life analogies and examples to demystify the
00:00:35 --> 00:00:37 world of administrative law for everyone trying
00:00:37 --> 00:00:39 to understand how government actually works.
00:00:40 --> 00:00:41 Agencies are the main way the federal government
00:00:41 --> 00:00:44 gets things done. It's not through Congress for
00:00:44 --> 00:00:46 reasons we'll be addressing over the course of
00:00:46 --> 00:00:51 this series. Last episode, we were talking about
00:00:51 --> 00:00:54 a couple of recent Supreme Court cases. This
00:00:54 --> 00:00:56 time we're dealing with another one, Mullen v.
00:00:56 --> 00:01:01 Doe. So here we start with Fritz Emanuel Leslie
00:01:01 --> 00:01:03 Mayotte. He held temporary protected status.
00:01:03 --> 00:01:06 This is a program that lets people from countries
00:01:06 --> 00:01:08 too dangerous to return to live and work here
00:01:08 --> 00:01:11 legally. He'd been here for 15 years. He lives
00:01:11 --> 00:01:13 in California and works in a laboratory researching
00:01:13 --> 00:01:16 Alzheimer's disease. And he has type 1 diabetes.
00:01:16 --> 00:01:19 In the United States, that's a managed condition.
00:01:19 --> 00:01:21 In Haiti, where the health care infrastructure
00:01:21 --> 00:01:24 collapsed years ago, it's something else. So
00:01:24 --> 00:01:27 he's lived 15 years on temporary protected status.
00:01:27 --> 00:01:30 Right. And at the end of the term, the Supreme
00:01:30 --> 00:01:33 Court said that he doesn't get to argue in federal
00:01:33 --> 00:01:35 court that the procedure used to revoke his status
00:01:35 --> 00:01:38 was unlawful. They're not saying he loses on
00:01:38 --> 00:01:40 the merits. They're saying a court won't even
00:01:40 --> 00:01:45 look. So can't look at what, though? They're
00:01:45 --> 00:01:46 saying the court can't look at whether the secretary
00:01:46 --> 00:01:49 of Homeland Security did the consultation the
00:01:49 --> 00:01:51 statute required before terminating his status.
00:01:51 --> 00:01:54 And this is Mullen v. Doe. It was decided June
00:01:54 --> 00:01:58 25th. Mullen is. standing in for the government,
00:01:58 --> 00:02:00 Doe and Miat, the one we talked about at the
00:02:00 --> 00:02:03 beginning, are the two temporary protected status
00:02:03 --> 00:02:06 holders on the other side of the case. And before
00:02:06 --> 00:02:08 we go a step further, this is the second of these
00:02:08 --> 00:02:11 emergency episodes on the court's recent decisions.
00:02:11 --> 00:02:14 The last time we said the check inside the agency
00:02:14 --> 00:02:17 was gone, after Slaughter, the president controls
00:02:17 --> 00:02:19 the agencies, this is the check on the outside.
00:02:20 --> 00:02:22 Slaughter asks who runs the agency. Mullen asks
00:02:22 --> 00:02:25 whether anyone can make it follow the law. Right.
00:02:26 --> 00:02:28 This is the other half of the story. And Miat
00:02:28 --> 00:02:30 isn't alone. The other temporary protected status
00:02:30 --> 00:02:34 holder is Dahlia Doe in Illinois. She's Syrian.
00:02:34 --> 00:02:37 She's been here since 2013 when her neighborhood
00:02:37 --> 00:02:39 was bombed. She's caring for her elderly mother,
00:02:39 --> 00:02:42 who's a U .S. citizen. She's raising a daughter
00:02:42 --> 00:02:43 who's lived in this country almost her entire
00:02:43 --> 00:02:46 life. They both have 60 days to leave the country.
00:02:46 --> 00:02:49 And hundreds of thousands of TPS holders are
00:02:49 --> 00:02:53 in the same position. The statute that... creates
00:02:53 --> 00:02:55 temporary protected status also talks about how
00:02:55 --> 00:02:59 you end it. There are four mandatory steps before
00:02:59 --> 00:03:02 the secretary can end TPS status. Here's this
00:03:02 --> 00:03:05 part. Okay. The attorney general, after consultation
00:03:05 --> 00:03:08 with appropriate agencies of the government,
00:03:08 --> 00:03:10 shall review the conditions in the foreign state
00:03:10 --> 00:03:13 for which a designation is in effect under this
00:03:13 --> 00:03:16 subsection and shall determine whether the condition
00:03:16 --> 00:03:18 for such designation under this subsection continue
00:03:18 --> 00:03:21 to be met. Dissent says there are four mandatory
00:03:21 --> 00:03:24 steps. Consult with the appropriate agencies
00:03:24 --> 00:03:27 about the country conditions. Review those conditions.
00:03:27 --> 00:03:29 Determine whether the statutory criteria are
00:03:29 --> 00:03:32 still met. And there's another one a little later
00:03:32 --> 00:03:34 in the statute that requires them to publish
00:03:34 --> 00:03:37 notice in the federal register. OK, I'm going
00:03:37 --> 00:03:40 to lean back to my legislative interpretation
00:03:40 --> 00:03:45 rules and just point out in the statute, shall,
00:03:45 --> 00:03:51 shall, shall. Right. And nobody in this case
00:03:51 --> 00:03:53 is arguing these steps are optional. Not the
00:03:53 --> 00:03:56 government, not the majority, not the dissent.
00:03:56 --> 00:03:59 All nine justices accept that the steps are mandatory.
00:04:00 --> 00:04:02 So before the secretary gets to the final answer,
00:04:02 --> 00:04:06 Congress says what has to happen first. Right.
00:04:06 --> 00:04:09 Congress didn't say do what you feel like. It
00:04:09 --> 00:04:12 said consult with the right agencies, review
00:04:12 --> 00:04:14 conditions in the country, decide whether the
00:04:14 --> 00:04:17 statutory criteria continue to be met, meaning
00:04:17 --> 00:04:19 decide whether the country is still so dangerous
00:04:19 --> 00:04:21 that people can't return to it, then publish
00:04:21 --> 00:04:24 notice. Those procedural inputs aren't decoration.
00:04:24 --> 00:04:27 They are the mechanism Congress chose to control
00:04:27 --> 00:04:30 that decision the secretary is making. Because
00:04:30 --> 00:04:32 if the secretary is deciding whether a country
00:04:32 --> 00:04:34 is still too dangerous to send people back to,
00:04:34 --> 00:04:37 Congress wants that decision grounded in actual
00:04:37 --> 00:04:40 country conditions, not just the politics. Right.
00:04:40 --> 00:04:43 This is the basic structure. We've got substance
00:04:43 --> 00:04:46 at the end. That's the decision. But we have
00:04:46 --> 00:04:48 process before that. That's how they're reaching
00:04:48 --> 00:04:50 the decision. And the plaintiff's argument was
00:04:50 --> 00:04:52 we're not asking the court to second guess the
00:04:52 --> 00:04:55 final policy judgment. We're asking whether the
00:04:55 --> 00:04:57 required process happened at all. But then there
00:04:57 --> 00:05:00 is another provision. There is. It's the same
00:05:00 --> 00:05:02 statutory section, but it's a little further
00:05:02 --> 00:05:05 down. It's the judicial review bar. This is what
00:05:05 --> 00:05:07 it says. There is no judicial review of any determination
00:05:07 --> 00:05:10 of the Secretary of Homeland Security with respect
00:05:10 --> 00:05:13 to the designation or termination or extension
00:05:13 --> 00:05:16 of a designation of a foreign state under this
00:05:16 --> 00:05:18 subsection. This is the section that everything
00:05:18 --> 00:05:22 in this case is riding on. So the first question
00:05:22 --> 00:05:25 then is, what's the determination? Right. The
00:05:25 --> 00:05:27 plaintiffs say the secretary's determination.
00:05:28 --> 00:05:29 The ultimate decision about whether Haiti and
00:05:29 --> 00:05:32 Syria qualify, sure, Congress can put that beyond
00:05:32 --> 00:05:35 review. But the consultation requirement is not
00:05:35 --> 00:05:37 the determination. It's a procedural step that
00:05:37 --> 00:05:40 comes before the determination. So a court can
00:05:40 --> 00:05:42 certainly ask whether that consultation happened
00:05:42 --> 00:05:44 without reviewing the final judgment itself.
00:05:44 --> 00:05:47 So Congress may have barred review of the final
00:05:47 --> 00:05:49 decision, but the plaintiffs say that does not
00:05:49 --> 00:05:52 automatically bar review of the steps Congress
00:05:52 --> 00:05:55 required before the decision can be made. Right.
00:05:55 --> 00:05:57 Their point is the secretary can make a decision
00:05:57 --> 00:06:00 courts can't revisit, but they still have to
00:06:00 --> 00:06:02 take the road that Congress wrote in the statute.
00:06:02 --> 00:06:05 Consultation first, review the country conditions,
00:06:05 --> 00:06:08 then we hit an unreviewable determination. And
00:06:08 --> 00:06:11 that argument lost. It did. Six to three. Here
00:06:11 --> 00:06:14 we have Alito writing. He's joined by the chief,
00:06:14 --> 00:06:17 Thomas, Kavanaugh, Gorsuch and Barrett, the group
00:06:17 --> 00:06:19 you would expect. Gorsuch and Barrett are also
00:06:19 --> 00:06:21 peeling off from the equal protection section,
00:06:21 --> 00:06:23 but we'll come to that later. All right. So.
00:06:24 --> 00:06:27 The consultation, that would be in quotes here,
00:06:27 --> 00:06:31 that took place was an email exchange. An email
00:06:31 --> 00:06:34 exchange between who? We had an aide to the Secretary
00:06:34 --> 00:06:36 of Homeland Security, and they're emailing an
00:06:36 --> 00:06:39 official at the State Department. So the State
00:06:39 --> 00:06:41 Department was an appropriate agency to assess
00:06:41 --> 00:06:43 country conditions. They sent one email about
00:06:43 --> 00:06:47 Haiti, one about Syria. The aide said that these
00:06:47 --> 00:06:49 designations were up for review, and the State
00:06:49 --> 00:06:52 Department official replied. this is where it
00:06:52 --> 00:06:55 gets interesting, that state had no foreign policy
00:06:55 --> 00:06:58 concerns with terminating the designations. So
00:06:58 --> 00:07:02 no foreign policy concerns. It might not be totally
00:07:02 --> 00:07:05 clear immediately, but what they're not saying
00:07:05 --> 00:07:08 is the countries are safe. They're not saying
00:07:08 --> 00:07:10 we've reviewed the situation. They're saying
00:07:10 --> 00:07:13 we have no foreign policy concerns. That's a
00:07:13 --> 00:07:15 different question. You can have no diplomatic
00:07:15 --> 00:07:18 objection to terminating TPS for an unsafe country.
00:07:18 --> 00:07:20 That just means you're not worried about the
00:07:20 --> 00:07:22 political fallout. The statute is asking about
00:07:22 --> 00:07:24 the conditions in the country. And the State
00:07:24 --> 00:07:27 Department answered about politics. So they're
00:07:27 --> 00:07:30 writing to DHS that there are no foreign policy
00:07:30 --> 00:07:33 concerns. On the State Department, they're saying
00:07:33 --> 00:07:35 something else about the actual country conditions.
00:07:36 --> 00:07:39 So here was their own travel advisory from that
00:07:39 --> 00:07:42 period. They're quoted in footnote two of Kagan's
00:07:42 --> 00:07:46 dissent. Said Haiti was unsafe due to kidnapping,
00:07:46 --> 00:07:49 crime, terrorist activity, civil unrest and limited
00:07:49 --> 00:07:52 health care. And no part of Syria was safe from
00:07:52 --> 00:07:55 violence due to terrorism, civil unrest, kidnapping,
00:07:55 --> 00:07:59 hostage taking and armed conflict. Wow. So no
00:07:59 --> 00:08:02 part of Syria is safe from violence. Kidnapping
00:08:02 --> 00:08:04 happens in Haiti. That's the agency the secretary
00:08:04 --> 00:08:07 supposedly consulted, telling the world one thing
00:08:07 --> 00:08:10 and DHS another. Right. Because what it was responding
00:08:10 --> 00:08:13 to DHS about wasn't even the same subject. And
00:08:13 --> 00:08:16 Kagan put it bluntly. Maybe the reply was a mistake.
00:08:17 --> 00:08:19 Maybe it was a purposeful avoidance of an inconvenient
00:08:19 --> 00:08:22 topic. Either way, it was not the consultation
00:08:22 --> 00:08:25 the statute called for. So what did the government
00:08:25 --> 00:08:29 say consult means then? Kagan quoted what the
00:08:29 --> 00:08:31 government was saying at oral argument. They
00:08:31 --> 00:08:34 said, if you've asked, you've consulted. Under
00:08:34 --> 00:08:37 their version, consultation means asking. It
00:08:37 --> 00:08:39 doesn't mean getting an answer. It doesn't mean
00:08:39 --> 00:08:42 getting an answer about the right subject. And
00:08:42 --> 00:08:45 Kagan's reply is this doctor analogy. If the
00:08:45 --> 00:08:47 doctor tells you, after consulting with specialists,
00:08:48 --> 00:08:49 I've determined you should have this procedure,
00:08:49 --> 00:08:51 and it turns out the specialist had emailed back
00:08:51 --> 00:08:54 about a baseball game, you would think the doctor
00:08:54 --> 00:08:56 had lied to you. Right. Consultation has to be
00:08:56 --> 00:08:59 about something. Right. That's the procedural
00:08:59 --> 00:09:02 failure the plaintiffs wanted reviewed. Not whether
00:09:02 --> 00:09:04 Haiti and Syria still qualified. They're not
00:09:04 --> 00:09:07 asking a court to second guess the final decision.
00:09:07 --> 00:09:10 The narrower claim was the statute said consult
00:09:10 --> 00:09:12 about country conditions, and that's not what
00:09:12 --> 00:09:14 happened. State published on its own website
00:09:14 --> 00:09:16 that no part of Syria is safe from violence.
00:09:17 --> 00:09:19 The same agency told DHS that it had no foreign
00:09:19 --> 00:09:22 policy concerns about terminating safe haven
00:09:22 --> 00:09:24 status for the people who'd been living here
00:09:24 --> 00:09:28 under this TPS designation. The Supreme Court
00:09:28 --> 00:09:29 has decided that no federal judge is allowed
00:09:29 --> 00:09:31 to look at the gap between those two statements.
00:09:32 --> 00:09:35 That's the holding. OK, how does the majority
00:09:35 --> 00:09:38 get to we can't look then? Through an absolutely
00:09:38 --> 00:09:41 tortured reading of determination. The majority
00:09:41 --> 00:09:44 says that determination can mean two things.
00:09:44 --> 00:09:47 It can mean the decision itself, the answer the
00:09:47 --> 00:09:49 secretary reached, or it could mean the entire
00:09:49 --> 00:09:51 process of getting there, the chain of events
00:09:51 --> 00:09:53 leading up to it. Here's how they say this. The
00:09:53 --> 00:09:56 term determination can be used to describe either
00:09:56 --> 00:09:59 an individual decision or the whole process leading
00:09:59 --> 00:10:01 to a final decision. And under either understanding
00:10:01 --> 00:10:05 of the term, the statute squarely bars all of
00:10:05 --> 00:10:08 respondents' non -constitutional claims. Under
00:10:08 --> 00:10:10 either the decision. So it doesn't matter whether
00:10:10 --> 00:10:13 decision means the decision or whether it means
00:10:13 --> 00:10:16 the entire process. Both readings will kill the
00:10:16 --> 00:10:19 lawsuit. OK, so if the process is the determination
00:10:19 --> 00:10:21 and the consultation is part of the process,
00:10:21 --> 00:10:24 then a challenge to the consultation is a challenge
00:10:24 --> 00:10:28 to the determination and the statute forecloses
00:10:28 --> 00:10:31 it. So that's the move. And they're widening
00:10:31 --> 00:10:34 it even more. That would be if we're. talking
00:10:34 --> 00:10:36 about determination as the entire process. But
00:10:36 --> 00:10:39 the majority also looks at Patel v. Garland from
00:10:39 --> 00:10:42 2022. And the holding there was that with respect
00:10:42 --> 00:10:46 to has a broadening effect. It sweeps in not
00:10:46 --> 00:10:48 just the provision subject, but anything relating
00:10:48 --> 00:10:51 to the subject. So even if determination only
00:10:51 --> 00:10:54 meant that final decision, the fact that it is
00:10:54 --> 00:10:57 with respect to the determination pulls in everything
00:10:57 --> 00:10:59 that relates to it. Consultation relates to the
00:10:59 --> 00:11:02 determination. Therefore, the consultation challenge
00:11:02 --> 00:11:05 is barred. Okay, so there are two layers, widen
00:11:05 --> 00:11:08 the noun and then widen the preposition. Right.
00:11:08 --> 00:11:11 So here's something that's worth noting. A year
00:11:11 --> 00:11:15 ago in EPA v. Calumet, the same court, Thomas
00:11:15 --> 00:11:18 more specifically, called determination a term
00:11:18 --> 00:11:21 of everyday usage and had some definitions. Here
00:11:21 --> 00:11:23 are the definitions that Thomas used. The settling
00:11:23 --> 00:11:26 and ending of a controversy or the resolving
00:11:26 --> 00:11:29 of a question by argument or reason. or the decision
00:11:29 --> 00:11:32 arrived at or promulgated, a determinate sentence,
00:11:32 --> 00:11:35 conclusion, or opinion. Not one of those definitions
00:11:35 --> 00:11:37 relates to everything the decision maker did
00:11:37 --> 00:11:40 beforehand. A determination is the output, not
00:11:40 --> 00:11:42 the input. You can also look at the Wayback Machine.
00:11:43 --> 00:11:46 McNary v. Haitian Refugee Center, this is a case
00:11:46 --> 00:11:47 that they actually cite, where they're describing
00:11:47 --> 00:11:50 a prior case about how Medicare benefits were
00:11:50 --> 00:11:53 being calculated. Here's what they say there.
00:11:54 --> 00:11:55 We rejected the government's contention that
00:11:55 --> 00:11:58 two sections of the Social Security Act barred
00:11:58 --> 00:12:01 judicial review of a validity of a regulation
00:12:01 --> 00:12:04 governing the payment of Medicare benefits. We
00:12:04 --> 00:12:07 recognized that review of individual determinations
00:12:07 --> 00:12:11 of the amount due on particular claims was foreclosed,
00:12:11 --> 00:12:14 but upheld the collateral attack on the regulation
00:12:14 --> 00:12:17 itself, emphasizing the critical difference between
00:12:17 --> 00:12:20 the individual amount determination and a challenge
00:12:20 --> 00:12:22 to the procedures for making such determinations.
00:12:23 --> 00:12:26 All right. So there they're saying, we understand
00:12:26 --> 00:12:29 that the statute forecloses review of the determination,
00:12:29 --> 00:12:32 but obviously we need to look at that critical
00:12:32 --> 00:12:34 difference between the determination and the
00:12:34 --> 00:12:37 way we get the determination. So then they have
00:12:37 --> 00:12:39 some more critical language at the end of that
00:12:39 --> 00:12:41 actual decision. Here's what they said there.
00:12:41 --> 00:12:44 The strong presumption in favor of judicial review
00:12:44 --> 00:12:47 of administrative action is not overcome either
00:12:47 --> 00:12:49 by the language or the purpose of the relevant
00:12:49 --> 00:12:51 provisions of the Reform Act. All right, we'll
00:12:51 --> 00:12:53 come back to that. But remember, we're talking
00:12:53 --> 00:12:55 about a strong presumption in favor of review.
00:12:56 --> 00:12:59 The majority's escape here is that McNary turned
00:12:59 --> 00:13:02 on the indefinite article A, and the TPS statute
00:13:02 --> 00:13:06 says any determination, not a determination.
00:13:06 --> 00:13:08 So that distinction might do some work in how
00:13:08 --> 00:13:11 many decisions the bar sweeps in. It does no
00:13:11 --> 00:13:13 work at all converting a decision into a process.
00:13:14 --> 00:13:16 So the majority reads determination to include
00:13:16 --> 00:13:19 things that aren't determinations because it's
00:13:19 --> 00:13:22 preceded by any and followed by with respect
00:13:22 --> 00:13:25 to. Yes. And once you make that move, the consultation
00:13:25 --> 00:13:28 requirement and any other procedural requirement
00:13:28 --> 00:13:31 that Congress could possibly attach to TPS termination
00:13:31 --> 00:13:34 becomes unenforceable. Congress can write the
00:13:34 --> 00:13:37 secretary shell all at once, but if no court
00:13:37 --> 00:13:39 can look, shell means nothing. But the majority
00:13:39 --> 00:13:41 still has a couple of arguments we haven't discussed.
00:13:41 --> 00:13:44 All right, let's do them. First, Congress wrote
00:13:44 --> 00:13:48 the statute, said no judicial review of any determination
00:13:48 --> 00:13:50 with respect to the termination of a designation.
00:13:51 --> 00:13:54 That is broad language. If Congress wanted to
00:13:54 --> 00:13:56 preserve review of the procedural steps, it knew
00:13:56 --> 00:13:59 how. Other statutes do exactly that. So when
00:13:59 --> 00:14:01 the majority reads the words on the page and
00:14:01 --> 00:14:03 concludes Congress meant to take courts out of
00:14:03 --> 00:14:07 this entirely, there's a textual case. It isn't
00:14:07 --> 00:14:10 invented. The dissent doesn't deny that Congress
00:14:10 --> 00:14:13 can bar review. It denies that this statute bars
00:14:13 --> 00:14:15 review. The argument isn't about whether Congress
00:14:15 --> 00:14:17 had the power to write something broader. It's
00:14:17 --> 00:14:19 about what the word determination actually carries.
00:14:19 --> 00:14:22 Congress wrote determination. The majority is
00:14:22 --> 00:14:24 reading determination plus the entire chain of
00:14:24 --> 00:14:27 procedural steps leading up to it. That is a
00:14:27 --> 00:14:29 much broader reading. OK, so here's the second
00:14:29 --> 00:14:32 one. This is immigration and foreign affairs.
00:14:33 --> 00:14:35 There's a long line back through Knopf and other
00:14:35 --> 00:14:38 cases. of courts staying out of executive judgments
00:14:38 --> 00:14:41 about which nationals from which country get
00:14:41 --> 00:14:44 to remain. Before TPS even existed, the D .C.
00:14:44 --> 00:14:47 Circuit, Judge Silberman, held the predecessor
00:14:47 --> 00:14:49 program unreviewable on the ground that you can't
00:14:49 --> 00:14:52 review this kind of call without an extraordinarily
00:14:52 --> 00:14:54 precise statutory standard to measure it against
00:14:54 --> 00:14:56 because control of the country's policy toward
00:14:56 --> 00:14:59 aliens is inherent in the executive power over
00:14:59 --> 00:15:03 foreign affairs. The majority quotes him. The
00:15:03 --> 00:15:06 default in this area has been no review. But
00:15:06 --> 00:15:09 the majority really relies on that. But Silverman's
00:15:09 --> 00:15:12 whole point was that the old program had no standards.
00:15:12 --> 00:15:16 Congress responded by creating TPS, specifically
00:15:16 --> 00:15:18 to add standards, substantive ones about country
00:15:18 --> 00:15:21 conditions, procedural ones about consultation,
00:15:21 --> 00:15:23 timing and notice. The entire purpose of the
00:15:23 --> 00:15:26 statute was to constrain executive discretion.
00:15:26 --> 00:15:29 If you read the judicial review bar to make these
00:15:29 --> 00:15:31 constraints unenforceable, you've unwound the
00:15:31 --> 00:15:33 reason Congress passed the statute in the first
00:15:33 --> 00:15:37 place. OK, third objection. or third potential
00:15:37 --> 00:15:41 argument. The majority quotes another judge and
00:15:41 --> 00:15:45 says political remedies still exist. If a secretary
00:15:45 --> 00:15:48 really did something egregious, terminated TPS
00:15:48 --> 00:15:51 on a coin flip, issued a 50 -year designation,
00:15:51 --> 00:15:55 Congress could fix it. Appropriations, new legislation,
00:15:56 --> 00:15:58 oversight, judicial review isn't the only check.
00:15:59 --> 00:16:02 That confuses having a remedy with that being
00:16:02 --> 00:16:05 the only possible avenue. TPS operates at the
00:16:05 --> 00:16:08 country level. One determination, like Haiti's,
00:16:08 --> 00:16:13 when that designation ends, 350 people are
00:16:13 --> 00:16:16 put on a 60 -day clock at the same time. Congress
00:16:16 --> 00:16:19 isn't going to unwind that in 60 days. And absolutely,
00:16:19 --> 00:16:22 Congress can act. And the House already has.
00:16:22 --> 00:16:24 It passed a bipartisan bill in April to extend
00:16:24 --> 00:16:27 Haitian TPS. But the bill is sitting in the Senate.
00:16:28 --> 00:16:31 It has not received a vote. The political process
00:16:31 --> 00:16:33 is no substitute for a court when the harm is
00:16:33 --> 00:16:35 immediate. And the people harmed can't vote.
00:16:36 --> 00:16:38 And courts are specifically empowered to review
00:16:38 --> 00:16:41 procedure. That's what they do. Especially when
00:16:41 --> 00:16:44 people harmed are non -citizens. They have no
00:16:44 --> 00:16:46 vote in the political process that's supposed
00:16:46 --> 00:16:48 to be their remedy. Right. And the political
00:16:48 --> 00:16:50 remedies argument treats the procedural protections
00:16:50 --> 00:16:54 as if they're aspirational. The statute doesn't
00:16:54 --> 00:16:57 say the secretary should consult. It says shall
00:16:57 --> 00:17:00 consult. Bowen v. Michigan Academy, which the
00:17:00 --> 00:17:03 dissent quotes, says Congress rights shall, expecting
00:17:03 --> 00:17:05 the executive to obey it and the courts to grant
00:17:05 --> 00:17:09 relief when it doesn't. The majority recites
00:17:09 --> 00:17:11 the presumption in favor of judicial review,
00:17:11 --> 00:17:13 and then it gives a reading that empties the
00:17:13 --> 00:17:16 command of any practical content. Subsidiary
00:17:16 --> 00:17:19 determinations merge into the final agency action.
00:17:19 --> 00:17:22 If the final agency action is unreviewable, so
00:17:22 --> 00:17:25 are whatever determinations led to it. Which
00:17:25 --> 00:17:28 is true in the ordinary APA case. Challenge final
00:17:28 --> 00:17:31 agency action and the antecedents come along
00:17:31 --> 00:17:33 for a ride. Right. So we only allow people to
00:17:33 --> 00:17:36 challenge final agency action generally. And
00:17:36 --> 00:17:38 when you do that, you're inherently looking at
00:17:38 --> 00:17:40 everything that came before that. But when we're
00:17:40 --> 00:17:43 doing that, we're doing it for the opposite reason.
00:17:43 --> 00:17:45 Merger means that you don't have to challenge
00:17:45 --> 00:17:48 each step separately. The majority flips it because
00:17:48 --> 00:17:50 the final agency action is unreviewable. The
00:17:50 --> 00:17:52 steps that lead to it can't be reviewed either.
00:17:53 --> 00:17:55 This is not a logical extension. This is also
00:17:55 --> 00:17:57 a procedural right to eliminating the extension
00:17:57 --> 00:18:00 when the underlying statute makes the final action
00:18:00 --> 00:18:03 expressly unreviewable. So there was another
00:18:03 --> 00:18:05 issue that was brought up in the case. The Miat
00:18:05 --> 00:18:08 plaintiffs also brought an equal protection claim.
00:18:08 --> 00:18:10 They mentioned some statements that the president
00:18:10 --> 00:18:13 had made about Haitians. Here's the actual dogs
00:18:13 --> 00:18:16 and cats quote. Yeah, this is this was what made
00:18:16 --> 00:18:19 the rounds in the media. for a while that in
00:18:19 --> 00:18:22 Springfield, they're eating the dogs, the people
00:18:22 --> 00:18:24 that came in, they're eating the cats, they're
00:18:24 --> 00:18:25 eating the pets of the people that live there.
00:18:26 --> 00:18:29 This is also the president who called Haiti a
00:18:29 --> 00:18:32 shithole country. And we had some statements
00:18:32 --> 00:18:36 by the secretary. First, in order to close off
00:18:36 --> 00:18:38 constitutional challenges, we need a clear statement.
00:18:38 --> 00:18:41 We get that from Webster V. Doe. There's a serious
00:18:41 --> 00:18:43 constitutional question lurking if Congress can
00:18:43 --> 00:18:45 close the courthouse to constitutional claims.
00:18:45 --> 00:18:47 So we want statutes to be really clear if they're
00:18:47 --> 00:18:49 doing that. Second, the way we would evaluate
00:18:49 --> 00:18:52 this claim, if we actually look at it, is whether
00:18:52 --> 00:18:55 race is a motivating factor. It doesn't need
00:18:55 --> 00:18:59 to be the motivating factor or the only motivating
00:18:59 --> 00:19:01 factor. It just needs to be a motivating factor.
00:19:01 --> 00:19:05 And the TPS statute doesn't separate constitutional
00:19:05 --> 00:19:08 from statutory claims. It just says no judicial
00:19:08 --> 00:19:11 review of any determination. Right. So the court
00:19:11 --> 00:19:14 declines to resolve whether the bar clears the
00:19:14 --> 00:19:16 Webster standard. that standard that we need
00:19:16 --> 00:19:19 a clear statement to foreclose this review, they
00:19:19 --> 00:19:21 sidestep by just ruling on the merits of any
00:19:21 --> 00:19:24 equal protection claim they might make and say
00:19:24 --> 00:19:26 it would fail, so we don't need to decide the
00:19:26 --> 00:19:29 jurisdictional question. So the likelihood of
00:19:29 --> 00:19:32 success on jurisdiction, the likelihood of success
00:19:32 --> 00:19:35 on the merits, both feed the same calculation
00:19:35 --> 00:19:38 when you're deciding interim relief. We could
00:19:38 --> 00:19:40 say that potentially makes sense procedurally,
00:19:40 --> 00:19:43 but the harder question is what they actually
00:19:43 --> 00:19:46 do on the merits. So Arlington Heights, again,
00:19:46 --> 00:19:48 that's the framework that everyone agrees is
00:19:48 --> 00:19:51 going to apply to these types of questions, asks
00:19:51 --> 00:19:53 whether a discriminatory purpose was a motivating
00:19:53 --> 00:19:56 factor. Not the only factor, not the primary
00:19:56 --> 00:19:59 factor, a motivating factor. That's potentially
00:19:59 --> 00:20:02 one of many. And the test calls for a sensitive
00:20:02 --> 00:20:05 inquiry into the surrounding statements in historical
00:20:05 --> 00:20:08 context. Those statements from earlier, those
00:20:08 --> 00:20:11 are on the record. There's also the question
00:20:11 --> 00:20:13 Trump asked about why we would take immigrants
00:20:13 --> 00:20:15 from these countries instead of Norway and Sweden.
00:20:16 --> 00:20:18 The Haitian immigration is like a death wish,
00:20:18 --> 00:20:20 and those immigrants are poisoning the blood
00:20:20 --> 00:20:23 of the nation. The district court, not surprisingly,
00:20:24 --> 00:20:26 took these statements as evidence of racial animus.
00:20:26 --> 00:20:29 And the Supreme Court's reading? The Supreme
00:20:29 --> 00:20:31 Court says that none of this is overtly racial.
00:20:31 --> 00:20:34 All of it could rest on race neutral justifications.
00:20:35 --> 00:20:38 Poverty in Haiti is real. The TPS criteria guarantee
00:20:38 --> 00:20:40 that many designated countries have difficult
00:20:40 --> 00:20:43 conditions. An opponent of TPS could oppose it
00:20:43 --> 00:20:46 on economic grounds. But Arlington Heights doesn't
00:20:46 --> 00:20:49 ask whether race is the sole cause. It just asks
00:20:49 --> 00:20:52 whether race was a motivating factor among others.
00:20:52 --> 00:20:54 The majority's race -neutral story is that the
00:20:54 --> 00:20:58 administration just doesn't like TPS as a category.
00:20:59 --> 00:21:01 Both of these things can be true at the same
00:21:01 --> 00:21:03 time. Right. That's what Kagan's saying. She's
00:21:03 --> 00:21:06 saying Arlington Heights is a both and test,
00:21:06 --> 00:21:09 not an either or test. The administration is
00:21:09 --> 00:21:11 generally hostile to immigration and to pass
00:21:11 --> 00:21:14 TPS policy. And there are race neutral reasons
00:21:14 --> 00:21:17 for that. But also racial reasons appear to be
00:21:17 --> 00:21:20 motivating the actions here. Both could be motivating
00:21:20 --> 00:21:23 factors. The court classes this into. A single
00:21:23 --> 00:21:25 inquiry. What is the most plausible reason and
00:21:25 --> 00:21:28 resolves it for the race neutral story? That
00:21:28 --> 00:21:30 is not the test Arlington Heights sets up. And
00:21:30 --> 00:21:33 the consequence? So here are statements that
00:21:33 --> 00:21:35 would have absolutely anchored an equal protection
00:21:35 --> 00:21:39 finding 20 years ago. Do not do so now. Not because
00:21:39 --> 00:21:41 the doctrine formally changed, but because the
00:21:41 --> 00:21:43 application did. Statements that the majority
00:21:43 --> 00:21:46 itself calls heated and declined to put into
00:21:46 --> 00:21:48 the opinion get treated as policy expression,
00:21:49 --> 00:21:52 not racial animus. That is a doctrinal move dressed
00:21:52 --> 00:21:55 as a factual finding. And that's the equal protection
00:21:55 --> 00:22:00 fight that's on the merits. Thomas is staking
00:22:00 --> 00:22:04 out an even stronger position. He filed a concurrence
00:22:04 --> 00:22:07 just by himself, agreeing in the result. He couldn't
00:22:07 --> 00:22:10 get anyone else to sign on, saying the TPS statute
00:22:10 --> 00:22:12 does bar constitutional claims. And that's fine
00:22:12 --> 00:22:15 because Congress can take constitutional claims
00:22:15 --> 00:22:17 away from the federal courts entirely. He says
00:22:17 --> 00:22:20 even if the bar were ambiguous, the Webster clear
00:22:20 --> 00:22:22 statement rule rests on a mistake. There's no
00:22:22 --> 00:22:25 serious constitutional question if Congress bars
00:22:25 --> 00:22:28 constitutional review because the lower federal
00:22:28 --> 00:22:30 courts are creatures of statute and Congress
00:22:30 --> 00:22:33 can take their jurisdiction away. He would reconsider
00:22:33 --> 00:22:38 Webster. So one justice, but a potential roadmap.
00:22:38 --> 00:22:41 That's how these things seem to work now. And
00:22:41 --> 00:22:44 he goes further still. He says that the equal
00:22:44 --> 00:22:46 protection claim fails on a deeper ground. Non
00:22:46 --> 00:22:49 -citizens have no equal protection rights against
00:22:49 --> 00:22:51 the federal government. The Fifth Amendment has
00:22:51 --> 00:22:54 no equal protection clause. The case that Red
00:22:54 --> 00:22:57 went into it, Bolling v. Sharp, a 1954 companion
00:22:57 --> 00:23:01 to Brown, the decision that desegregated the
00:23:01 --> 00:23:04 D .C. schools, was, in his view, wrong. That's
00:23:04 --> 00:23:07 an episode we'll get to, not a fight for today.
00:23:07 --> 00:23:09 But the point is the pattern. Webster's clear
00:23:09 --> 00:23:11 statement rule, Bolling's equal protection guarantee
00:23:11 --> 00:23:14 offense. against the federal government, two
00:23:14 --> 00:23:16 productions that the majority theoretically left
00:23:16 --> 00:23:19 standing, we have at least one person with a
00:23:19 --> 00:23:21 knife ready for each. You write a concurrence,
00:23:21 --> 00:23:24 you mark the territory, and you wait. So the
00:23:24 --> 00:23:26 majority reads a jurisdictional bar to swallow
00:23:26 --> 00:23:28 the procedural steps that have come before it,
00:23:28 --> 00:23:32 and Thomas is willing to read it to swallow the
00:23:32 --> 00:23:35 constitutional claims as well. This is a case
00:23:35 --> 00:23:38 about what no judicial review means. Right, and
00:23:38 --> 00:23:41 what it means keeps expanding. This is why the
00:23:41 --> 00:23:43 presumption of reviewability matters, said we'd
00:23:43 --> 00:23:46 come back to it. This is the rule that says agency
00:23:46 --> 00:23:48 action is reviewable unless Congress clearly
00:23:48 --> 00:23:52 says otherwise. It's the default the whole Administrative
00:23:52 --> 00:23:54 Procedure Act is built on. Here's the section
00:23:54 --> 00:23:57 at 701. So it says the chapter applies according
00:23:57 --> 00:24:01 to the provisions thereof, except to the extent
00:24:01 --> 00:24:04 that statutes preclude judicial review or agency
00:24:04 --> 00:24:06 action is committed to agency discretion by law.
00:24:07 --> 00:24:10 So we've got two exceptions, but. This whole
00:24:10 --> 00:24:14 idea, all of administrative procedure, only works
00:24:14 --> 00:24:17 if these are exceptions that stay narrow. Mullen
00:24:17 --> 00:24:20 is testing whether they still are. Which is why
00:24:20 --> 00:24:25 this matters past Mio and Doe. Right. So think
00:24:25 --> 00:24:28 about what administrative law actually is. It
00:24:28 --> 00:24:30 is, above all, the procedures agencies have to
00:24:30 --> 00:24:33 follow. It's the way we make sure they follow
00:24:33 --> 00:24:35 them. That's the whole thing. Congress writes
00:24:35 --> 00:24:38 rules an agency has to obey. When the agency
00:24:38 --> 00:24:40 doesn't, someone gets to walk into court and
00:24:40 --> 00:24:43 say so. Mullen says, not here. The statute told
00:24:43 --> 00:24:46 the secretary to consult. The secretary didn't.
00:24:46 --> 00:24:48 And now no court is allowed to look. That is
00:24:48 --> 00:24:51 not a narrow ruling. That is a court removing
00:24:51 --> 00:24:53 the mechanism that makes procedural requirements
00:24:53 --> 00:24:56 mean anything. Which is why this is the case
00:24:56 --> 00:25:00 to open next season on. Right. So judicial review
00:25:00 --> 00:25:02 is the single most important power allocation
00:25:02 --> 00:25:05 device in administrative law. Slaughter took
00:25:05 --> 00:25:08 the check inside the executive away. Now the
00:25:08 --> 00:25:10 president controls everything there. And Mullins
00:25:10 --> 00:25:12 narrows the check outside it. What's left of
00:25:12 --> 00:25:14 that architecture is what this season is about.
00:25:15 --> 00:25:16 We're going to talk about every doctrine that
00:25:16 --> 00:25:19 decides whether a court gets to look at it and
00:25:19 --> 00:25:22 how they determine things when they do, because
00:25:22 --> 00:25:23 you can fight a lot harder when you understand
00:25:23 --> 00:25:26 why something matters. And this court just made
00:25:26 --> 00:25:28 it a lot easier to lose things without noticing.
00:25:29 --> 00:25:32 Okay, so 16 episodes on the architecture that's
00:25:32 --> 00:25:34 under the most pressure it's faced in eight years.
00:25:35 --> 00:25:38 Right, and it's not one way. Learning resources,
00:25:38 --> 00:25:40 the same term, that's the one that struck down
00:25:40 --> 00:25:42 the IEPA tariffs, because the court held the
00:25:42 --> 00:25:45 president lacked statutory authority to do it.
00:25:45 --> 00:25:47 Again, that's not a determination you can make
00:25:47 --> 00:25:50 if you refuse to even look at it. Judicial review
00:25:50 --> 00:25:54 is critical. So that does it for today's episode
00:25:54 --> 00:25:56 on administrative remedies. Thank you for joining
00:25:56 --> 00:25:59 us today. Please, if you enjoy this podcast,
00:25:59 --> 00:26:02 enjoy this episode, give us a like on Spotify,
00:26:03 --> 00:26:05 iTunes, or whatever platform you're listening
00:26:05 --> 00:26:08 on. And be sure to tune in next time where we'll
00:26:08 --> 00:26:10 continue to dive into the contours of administrative
00:26:10 --> 00:26:13 law, because remember, you can't fix what you
00:26:13 --> 00:26:13 don't understand.