Mullin v. Doe: The Supreme Court Case That Made Certain Immigration Procedures Unenforceable

The federal statute that ends Temporary Protected Status contains four mandatory steps. Before the Secretary of Homeland Security can terminate a country's designation and put people who have been living here lawfully on a 60-day clock, the Secretary "shall" consult with appropriate agencies about country conditions, "shall" review those conditions, "shall" determine whether the statutory criteria are still met, and "shall" publish notice in the Federal Register. All nine justices agree those steps are mandatory. On June 25, 2026, in Mullin v. Doe, the Supreme Court held 6-3 that no federal court is allowed to look at whether they actually happened. That is the whole case.

Fritz Emmanuel Lesly Miot has held TPS for fifteen years. He lives in California, works in a lab researching Alzheimer's disease, and has Type 1 diabetes — a managed condition in the United States, something else in Haiti, where the healthcare infrastructure collapsed years ago. Dahlia Doe is Syrian, lives in Illinois, has been here since 2013 after her neighborhood was bombed, cares for her elderly U.S. citizen mother, and is raising a daughter who has lived in this country almost her entire life. Both were on the same 60-day clock after the Secretary terminated Haiti's and Syria's designations. Their argument was narrow: they weren't asking a court to second-guess the substantive judgment about whether Haiti or Syria still qualified for the program. They were asking whether the consultation Congress required had happened at all. The Court said even that question is off-limits.

This is the second half of the story that begins with Trump v. Slaughter. Slaughter, decided four days later, took away the check inside the executive branch — after that decision, the president controls the agencies. Mullin narrows the check outside them. Slaughter asked who runs the agency. Mullin asks whether anyone can make it follow the law. The two decisions define the architecture of what administrative law looks like from here.

The consultation at issue in Mullin was an email exchange. An aide to the Secretary of Homeland Security messaged an official at the State Department — the agency plainly appropriate for assessing country conditions — that the Haiti and Syria designations were up for review. The State Department official replied that State had "no foreign policy concerns" with terminating the designations. Not "the country conditions are safe." Not "we've reviewed and concur." No foreign policy concerns. At the same moment, State's own travel advisories described Haiti as unsafe due to "kidnapping, crime, terrorist activity, civil unrest, and limited health care," and said "[n]o part of Syria [was] safe from violence" due to "terrorism, civil unrest, kidnapping, hostage taking, and armed conflict." The same agency was telling the world one thing and DHS another. Justice Kagan's dissent notes the government's own definition of "consult" at oral argument: "if you've asked, you've consulted." Consultation means asking. It doesn't require an answer, or an answer about the right subject. Kagan offers the doctor analogy — if your doctor said, "after consulting a specialist, I've determined you should have this procedure," and the specialist had emailed back about a baseball game, you would think the doctor had lied to you.

The 6-3 majority — Justice Alito writing for the Chief Justice, Thomas, Kavanaugh, Gorsuch, and Barrett (Gorsuch and Barrett later peel off from the equal protection portion) — takes a route through the word "determination." The relevant judicial-review bar is twenty-eight words: "There is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection." The plaintiffs read that as barring review of the ultimate call — is the country still too dangerous — while leaving intact review of the procedural steps that come first. Alito's majority opinion reads "determination" much wider. It holds that the word can mean either the individual decision or the whole process leading to that decision, and that under either reading the challenge is barred. It then invokes Patel v. Garland to hold that "with respect to" has a broadening effect, sweeping in anything that relates to the determination even if it isn't the determination itself. Two layers. Widen the noun, then widen the preposition.

The problem the dissent identifies is that the majority's expansive reading of "determination" contradicts the Court's own recent definitions of the word. In EPA v. Calumet, decided one term earlier, Justice Thomas — writing for the Court — defined "determination" using ordinary-usage sources as "the settling and ending of a controversy," "the resolving of a question by argument or reasoning," and "the decision arrived at or promulgated; a determinate sentence, conclusion, or opinion." A determination is the output, not the input. None of those definitions reach the procedural chain that came before. Going further back, in McNary v. Haitian Refugee Center (1991), the Court explicitly distinguished "individual amount determinations" from "a challenge to the procedures for making such determinations" and held that Congress's bar on review of the former did not foreclose review of the latter. McNary ended with the language the Mullin dissent puts front and center: "The strong presumption in favor of judicial review of administrative action is not overcome either by the language or the purpose of the relevant provisions of the [statute]." The majority in Mullin distinguishes McNary on the ground that the statute there said "a" determination while the TPS statute says "any" determination. That distinction might affect how many decisions the bar reaches. It does no work at all converting a decision into a process.

The strongest argument the majority has isn't the textual one — it's the immigration-and-foreign-affairs tradition. Since Knauff and Harisiades in the mid-twentieth century, courts have stayed out of executive judgments about which foreign nationals can remain, on the theory that these questions lie at the intersection of foreign affairs and immigration, both of which are areas of extraordinary executive prerogative. Before TPS existed, then-Judge Silberman held the predecessor program unreviewable because there was no meaningful statutory standard to measure the executive's judgment against. Silberman's whole point was that the old program had no standards. Congress responded by creating TPS specifically to add them — substantive ones about country conditions, procedural ones about consultation, review, and notice. The majority quotes Silberman without engaging with what Congress did next. Reading the judicial-review bar to make Congress's newly-added constraints unenforceable unwinds the reason Congress passed the statute in the first place.

The majority's answer is that political remedies remain available. Congress could pass corrective legislation. Judicial review isn't the only check. The dissent's answer is that a TPS termination puts an entire country's population on a 60-day clock simultaneously — approximately 350,000 people in the Haiti termination alone — and Congress cannot practically respond in that timeframe. The House already passed a bipartisan bill in April to extend Haitian TPS, and the bill has been sitting in the Senate without a vote ever since. The political-remedies argument also assumes the people affected can participate in politics, which noncitizens by definition cannot. The dissent quotes Bowen v. Michigan Academy: Congress writes "shall" expecting the executive to obey it and the courts to grant relief when it doesn't. The majority recites the presumption. Then it gives a reading that empties the command of practical content.

The equal protection claim in Mullin is where the case becomes potentially larger than TPS. The plaintiffs argued under Arlington Heights that racial animus was a motivating factor in the terminations. The record included the president's on-record statements — that immigrants were "eating the pets," that Haitian immigration was "like a death wish," questions about why the U.S. takes immigrants from those countries rather than "Norway and Sweden," references to immigrants "poisoning the blood" of the nation, the "shithole countries" comment. The framework the Court used to reach these claims is Webster v. Doe, which requires an unmistakable statement from Congress before a statute can be read to close the courthouse to constitutional claims — because doing so raises a serious constitutional question about congressional power over federal court jurisdiction. The Court sidesteps whether the TPS statute clears the Webster threshold by ruling on the merits of the equal protection claim instead: even if the constitutional claim can be heard, it fails. The Court reads the Arlington Heights framework to ask which explanation is most plausible — race or a race-neutral hostility to TPS — and picks the race-neutral one. But Arlington Heights is a both-and test, not an either-or test. Race need not be the sole cause or even the primary cause; it needs to be a motivating factor among others. Both can be true. Kagan's dissent argues the majority has collapsed the test into a single-cause inquiry that lets statements which would have anchored an equal protection finding twenty years ago no longer do the same work.

Justice Thomas's solo concurrence is the flag planted for the next fight. He would hold that the TPS bar reaches constitutional claims and that this is fine, because Congress can take constitutional challenges away from federal courts entirely. His argument: the words "no judicial review" are unambiguous, and the Webster clear-statement rule rests on a mistake — there is no serious constitutional question in Congress barring constitutional review, because the lower federal courts are creatures of statute and Congress can strip their jurisdiction. He would reconsider Webster. He goes further still on the merits: noncitizens have no equal-protection rights against the federal government at all, because the Fifth Amendment has no Equal Protection Clause and Bolling v. Sharpe — the 1954 companion to Brown, the decision that desegregated the D.C. schools — was wrong. That's one justice. But it's a roadmap. Two protections the majority left standing today — Webster's clear-statement rule and Bolling's equal protection against the federal government — with one justice openly sharpening a knife for each.

The reason Mullin matters beyond TPS shows in what happened the same term in Learning Resources v. Trump — the Court held that the president lacked statutory authority to impose the IEPA tariffs and struck the action down. That's the shape of judicial review when courts get to look. Mullin is what happens when they don't. The mechanism at stake is Section 701 of the Administrative Procedure Act, which says the whole framework applies except where "statutes preclude judicial review" or where "agency action is committed to agency discretion by law." Everything else defaults to reviewable. The presumption of reviewability is the mechanism that makes procedural requirements mean anything. Congress writes rules an agency has to obey; when the agency doesn't, someone gets to walk into a court and say so. Mullin says: not here. The statute told the Secretary to consult. She didn't. And no court can look. That is not a narrow ruling. That is the Court removing the mechanism that makes procedural requirements enforceable, in a case where nobody — not the majority, not the government, not the dissent — disputes that the requirements existed. Once a jurisdictional bar can be read this broadly, the same reading is available every time Congress restricts judicial review of an agency action, even in specific corners of the statute. That's why the season opens on this case. Judicial review is the single most important power-allocation device in administrative law. Slaughter took the check inside the executive away. Mullin narrowed the check outside it. What is left is the architecture the rest of the season examines.

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What We Cover

  • The four mandatory steps the TPS statute requires before a designation can be terminated, and why all nine justices agree they are mandatory
  • The stakes for Fritz Miot, Dahlia Doe, and the approximately 350,000 Haitian TPS holders on 60-day clocks after termination
  • Why the consultation at issue was an email exchange in which State said it had "no foreign policy concerns" — a different question than country conditions
  • How the State Department's own travel advisories describing Haiti and Syria as unsafe contradicted what State told DHS in the internal email
  • The government's oral-argument definition of consultation as "if you've asked, you've consulted," and why Kagan calls that a lie about what consultation means
  • Justice Alito writing the 6-3 majority (Chief Justice, Thomas, Kavanaugh, Gorsuch, Barrett) — and why Gorsuch and Barrett peel off from the equal protection portion
  • The majority's reading of "determination" to include not just the final decision but the entire process leading up to it
  • How the majority uses Patel v. Garland to broaden "with respect to" so it sweeps in anything relating to the determination even if it isn't the determination
  • Why the Court's recent definition of "determination" in EPA v. Calumet contradicts the reading it adopts in Mullin
  • McNary v. Haitian Refugee Center (1991) and its distinction between individual determinations and challenges to the procedures for making them
  • The immigration-and-foreign-affairs tradition the majority relies on, and why Congress created TPS specifically to add the standards Silberman said the predecessor program lacked
  • Why the political-remedies argument is procedurally hollow when TPS terminations affect hundreds of thousands of people on 60-day clocks and the affected people cannot vote
  • The equal protection claim under Arlington Heights and how the majority collapses a both-and test into an either-or test
  • Webster v. Doe and the clear-statement rule that protects constitutional challenges to otherwise-unreviewable agency action
  • Justice Thomas's solo concurrence arguing that Congress can bar constitutional claims from federal court entirely — and that Bolling v. Sharpe was wrong
  • Why the APA's presumption of reviewability under Section 701 is the mechanism that makes procedural requirements enforceable, and why Mullin tests how narrow the exceptions still are
  • How Learning Resources v. Trump — decided the same term — shows what judicial review can do when courts get to look, and how Mullin narrows when they can
  • How Slaughter and Mullin together define the architecture — the check inside the agency gone, the check outside it narrowed

Full Rough Transcript

Gwen: Hello, and welcome to Administrative Remedies — because you can't fix what you don't understand. Brought to you in part by the University of Tulsa College of Law. I'm Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I'm Marc Rourke. I'm the dean of the College of Law. We'll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Gwen: Agencies are the main way the federal government gets things done. It's not through Congress — for reasons we'll be addressing over the course of this series. Last episode, we were talking about a couple of recent Supreme Court cases. This time we're dealing with another one, Mullin v. Doe. So here we start with Fritz Emmanuel Lesly Miot. He held Temporary Protected Status — this is a program that lets people from countries too dangerous to return to live and work here legally. He'd been here for fifteen years. He lives in California and works in a laboratory researching Alzheimer's disease. And he has Type 1 diabetes. In the United States, that's a managed condition. In Haiti, where the health care infrastructure collapsed years ago, it's something else.

Marc: So he's lived fifteen years on Temporary Protected Status.

Gwen: Right. And at the end of the term, the Supreme Court said that he doesn't get to argue in federal court that the procedure used to revoke his status was unlawful. They're not saying he loses on the merits. They're saying a court won't even look.

Marc: So — can't look at what?

Gwen: They're saying the court can't look at whether the Secretary of Homeland Security did the consultation the statute required before terminating his status. And this is Mullin v. Doe — it was decided June 25th. Mullin is standing in for the government; Doe and Miot, the one we talked about at the beginning, are the two TPS holders on the other side of the case.

Marc: And before we go a step further — this is the second of these emergency episodes on the Court's recent decisions. Last time we said the check inside the agency was gone: after Slaughter, the president controls the agencies. This is the check on the outside. Slaughter asks who runs the agency. Mullin asks whether anyone can make it follow the law.

Gwen: Right. This is the other half of the story. And Miot isn't alone. The other TPS holder is Dahlia Doe in Illinois. She's Syrian. She's been here since 2013, when her neighborhood was bombed. She's caring for her elderly mother, who's a U.S. citizen. She's raising a daughter who's lived in this country almost her entire life. They both have sixty days to leave the country. And hundreds of thousands of TPS holders are in the same position.

The statute that creates Temporary Protected Status also talks about how you end it. There are four mandatory steps before the Secretary can end TPS status. Here's this part.

Marc [reading]: "The Attorney General, after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state for which a designation is in effect under this subsection and shall determine whether the conditions for such designation under this subsection continue to be met."

Gwen: The dissent says there are four mandatory steps. Consult with the appropriate agencies about the country conditions. Review those conditions. Determine whether the statutory criteria are still met. And there's another one a little later in the statute that requires them to publish notice in the Federal Register.

Marc: Okay, I'm going to lean back to my legislative interpretation rules and just point out — in the statute: shall, shall, shall.

Gwen: Right. And nobody in this case is arguing these steps are optional. Not the government, not the majority, not the dissent. All nine justices accept that the steps are mandatory.

Marc: So before the Secretary gets to the final answer, Congress says what has to happen first.

Gwen: Right. Congress didn't say "do what you feel like." It said consult with the right agencies, review conditions in the country, decide whether the statutory criteria continue to be met — meaning decide whether the country is still so dangerous that people can't return to it — then publish notice. Those procedural inputs aren't decoration. They are the mechanism Congress chose to control that decision the Secretary is making.

Marc: Because if the Secretary is deciding whether a country is still too dangerous to send people back to, Congress wants that decision grounded in actual country conditions, not just the politics.

Gwen: Right. This is the basic structure. We've got substance at the end — that's the decision. But we have process before that — that's how they're reaching the decision. And the plaintiffs' argument was: we're not asking the court to second-guess the final policy judgment. We're asking whether the required process happened at all.

Marc: But then there is another provision.

Gwen: There is. It's the same statutory section, but it's a little further down. It's the judicial review bar. This is what it says.

Marc [reading]: "There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection."

Gwen: This is the section that everything in this case is riding on.

Marc: So the first question, then, is: what's the determination?

Gwen: Right. The plaintiffs say the Secretary's determination — the ultimate decision about whether Haiti and Syria qualify — sure, Congress can put that beyond review. But the consultation requirement is not the determination. It's a procedural step that comes before the determination. So a court can certainly ask whether that consultation happened without reviewing the final judgment itself.

Marc: So Congress may have barred review of the final decision, but the plaintiffs say that does not automatically bar review of the steps Congress required before the decision can be made.

Gwen: Right. Their point is: the Secretary can make a decision courts can't revisit, but they still have to take the road that Congress wrote in the statute. Consultation first, review the country conditions, then we hit an unreviewable determination.

Marc: And that argument lost.

Gwen: It did. Six to three. Here we have Alito writing. He's joined by the Chief, Thomas, Kavanaugh, Gorsuch, and Barrett — the group you would expect. Gorsuch and Barrett are also peeling off from the equal protection section, but we'll come to that later.

Gwen: All right. So the consultation — that would be in quotes here — that took place was an email exchange.

Marc: An email exchange between who?

Gwen: We had an aide to the Secretary of Homeland Security, and they're emailing an official at the State Department. So the State Department was an appropriate agency to assess country conditions. They sent one email about Haiti, one about Syria. The aide said that these designations were up for review, and the State Department official replied — this is where it gets interesting — that State had "no foreign policy concerns" with terminating the designations.

Marc: So — "no foreign policy concerns."

Gwen: It might not be totally clear immediately, but what they're not saying is that the countries are safe. They're not saying "we've reviewed the situation." They're saying "we have no foreign policy concerns." That's a different question. You can have no diplomatic objection to terminating TPS for an unsafe country — that just means you're not worried about the political fallout. The statute is asking about the conditions in the country. And the State Department answered about politics.

Marc: So they're writing to DHS that there are no foreign policy concerns. On the State Department's own website, they're saying something else about the actual country conditions.

Gwen: Right. Here was their own travel advisory from that period. They're quoted in footnote two of Kagan's dissent.

Marc [reading]: Haiti was unsafe due to "kidnapping, crime, terrorist activity, civil unrest, and limited health care," and "[n]o part of Syria [was] safe from violence" due to "terrorism, civil unrest, kidnapping, hostage taking, and armed conflict."

Marc: Wow. So no part of Syria is safe from violence. Kidnapping happens in Haiti. That's the agency the Secretary supposedly consulted — telling the world one thing and DHS another.

Gwen: Right. Because what it was responding to DHS about wasn't even the same subject. And Kagan put it bluntly: maybe the reply was a mistake, maybe it was a purposeful avoidance of an inconvenient topic. Either way, it was not the consultation the statute called for.

Marc: So what did the government say "consult" means, then?

Gwen: Kagan quoted what the government was saying at oral argument. They said, "if you've asked, you've consulted." Under their version, consultation means asking. It doesn't mean getting an answer. It doesn't mean getting an answer about the right subject. And Kagan's reply is this doctor analogy: if the doctor tells you, "after consulting with specialists, I've determined you should have this procedure," and it turns out the specialist had emailed back about a baseball game, you would think the doctor had lied to you.

Marc: Right. Consultation has to be about something.

Gwen: Right. That's the procedural failure the plaintiffs wanted reviewed. Not whether Haiti and Syria still qualified — they're not asking a court to second-guess the final decision. The narrower claim was: the statute said consult about country conditions, and that's not what happened. State published on its own website that no part of Syria is safe from violence. The same agency told DHS that it had no foreign policy concerns about terminating safe-haven status for the people who'd been living here under this TPS designation. The Supreme Court has decided that no federal judge is allowed to look at the gap between those two statements. That's the holding.

Marc: Okay — how does the majority get to "we can't look," then?

Gwen: Through an absolutely tortured reading of "determination." The majority says that "determination" can mean two things. It can mean the decision itself — the answer the Secretary reached — or it could mean the entire process of getting there, the chain of events leading up to it. Here's how they say this.

Marc [reading]: "The term 'determination' can be used to describe either an individual decision or the whole process leading to a final decision, and under either understanding of the term, [the statute] squarely bars all of respondents' non-constitutional claims."

Gwen: Under either. So it doesn't matter whether "determination" means the decision or whether it means the entire process. Both readings will kill the lawsuit.

Marc: Okay, so if the process is the determination, and the consultation is part of the process, then a challenge to the consultation is a challenge to the determination — and the statute forecloses it.

Gwen: So that's the move. And they're widening it even more. That would be if we're talking about "determination" as the entire process. But the majority also looks at Patel v. Garland from 2022. And the holding there was that "with respect to" has a broadening effect — it sweeps in not just the provision's subject, but anything relating to the subject. So even if "determination" only meant that final decision, the fact that it is "with respect to" the determination pulls in everything that relates to it. Consultation relates to the determination. Therefore, the consultation challenge is barred.

Marc: Okay, so there are two layers — widen the noun, and then widen the preposition.

Gwen: Right. So here's something that's worth noting. A year ago, in EPA v. Calumet, the same Court — Thomas, more specifically — called "determination" a term of everyday usage and had some definitions. Here are the definitions that Thomas used: "the settling and ending of a controversy," or "the resolving of a question by argument or reason," or "the decision arrived at or promulgated; a determinate sentence, conclusion, or opinion." Not one of those definitions relates to everything the decisionmaker did beforehand. A determination is the output, not the input.

You can also look at the Wayback Machine — McNary v. Haitian Refugee Center. This is a case that they actually cite, where they're describing a prior case about how Medicare benefits were being calculated. Here's what they say there.

Marc [reading]: "We rejected the Government's contention that two sections of the Social Security Act barred judicial review of the validity of a regulation governing the payment of Medicare benefits. We recognized that review of individual determinations of the amount due on particular claims was foreclosed, but upheld the collateral attack on the regulation itself, emphasizing the critical difference between an individual 'amount determination' and a challenge to the procedures for making such determinations."

Gwen: All right. So there they're saying: we understand that the statute forecloses review of the determination, but obviously we need to look at that critical difference between the determination and the way we get to the determination. So then they have some more critical language at the end of that actual decision. Here's what they said there.

Marc [reading]: "The strong presumption in favor of judicial review of administrative action is not overcome either by the language or the purpose of the relevant provisions of the Reform Act."

Gwen: All right, we'll come back to that. But remember — we're talking about a strong presumption in favor of review. The majority's escape here is that McNary turned on the indefinite article "a," and the TPS statute says "any determination," not "a determination." So that distinction might do some work on how many decisions the bar sweeps in. It does no work at all converting a decision into a process.

Marc: So the majority reads "determination" to include things that aren't determinations — because it's preceded by "any" and followed by "with respect to."

Gwen: Yes. And once you make that move, the consultation requirement — and any other procedural requirement that Congress could possibly attach to TPS termination — becomes unenforceable. Congress can write "the Secretary shall" all it wants, but if no court can look, "shall" means nothing.

Marc: But the majority still has a couple of arguments we haven't discussed.

Gwen: All right, let's do them.

Marc: First. Congress wrote the statute — "no judicial review of any determination with respect to" the termination of a designation. That is broad language. If Congress wanted to preserve review of the procedural steps, it knew how — other statutes do exactly that. So when the majority reads the words on the page and concludes Congress meant to take courts out of this entirely, there's a textual case. It isn't invented.

Gwen: The dissent doesn't deny that Congress can bar review. It denies that this statute bars review. The argument isn't about whether Congress had the power to write something broader. It's about what the word "determination" actually carries. Congress wrote "determination." The majority is reading "determination" plus the entire chain of procedural steps leading up to it. That is a much broader reading.

Marc: Okay, so here's the second one. This is immigration, and foreign affairs. There's a long line — back through Knauff and other cases — of courts staying out of executive judgments about which nationals from which country get to remain. Before TPS even existed, the D.C. Circuit — Judge Silberman — held the predecessor program unreviewable, on the ground that you can't review this kind of call without an extraordinarily precise statutory standard to measure it against, because control of the country's policy toward aliens is inherent in the executive power over foreign affairs. The majority quotes him. The default in this area has been no review.

Gwen: But the majority really relies on that. And Silberman's whole point was that the old program had no standards. Congress responded by creating TPS, specifically to add standards — substantive ones about country conditions, procedural ones about consultation, timing, and notice. The entire purpose of the statute was to constrain executive discretion. If you read the judicial review bar to make these constraints unenforceable, you've unwound the reason Congress passed the statute in the first place.

Marc: Okay, third objection — or third potential argument. The majority quotes another judge and says political remedies still exist. If a Secretary really did something egregious — terminated TPS on a coin flip, issued a fifty-year designation — Congress could fix it. Appropriations, new legislation, oversight. Judicial review isn't the only check.

Gwen: That confuses having a remedy with that being the only possible avenue. TPS operates at the country level. One determination — like Haiti's — when that designation ends, 350,000 people are put on a sixty-day clock at the same time. Congress isn't going to unwind that in sixty days. And, absolutely, Congress can act. And the House already has: it passed a bipartisan bill in April to extend Haitian TPS. But the bill is sitting in the Senate. It has not received a vote. The political process is no substitute for a court when the harm is immediate and the people harmed can't vote. And courts are specifically empowered to review procedure. That's what they do.

Marc: Especially when the people harmed are noncitizens. They have no vote in the political process that's supposed to be their remedy.

Gwen: Right. And the political-remedies argument treats the procedural protections as if they're aspirational. The statute doesn't say the Secretary should consult. It says shall consult. Bowen v. Michigan Academy — which the dissent quotes — says Congress writes "shall" expecting the executive to obey it and the courts to grant relief when it doesn't. The majority recites the presumption in favor of judicial review, and then it gives a reading that empties the command of any practical content. Subsidiary determinations merge into the final agency action; if the final agency action is unreviewable, so are whatever determinations led to it.

Marc: Which is true in the ordinary APA case. Challenge final agency action, and the antecedents come along for the ride.

Gwen: Right. So we only allow people to challenge final agency action generally, and when you do that, you're inherently looking at everything that came before it. But when we're doing that, we're doing it for the opposite reason. Merger means that you don't have to challenge each step separately. The majority flips it: because the final agency action is unreviewable, the steps that lead to it can't be reviewed either. It's a logical extension — and it's also a procedural-rights-eliminating one, when the underlying statute makes the final action expressly unreviewable.

Gwen: So there was another issue that was brought up in the case. The Miot plaintiffs also brought an equal protection claim. They mentioned some statements that the president had made about Haitians. Here's the actual dogs-and-cats quote.

Marc: Yeah, this was what made the rounds in the media for a while.

Marc [reading]: "In Springfield, they're eating the dogs, the people that came in, they're eating the cats. They're eating the pets of the people that live there."

Gwen: This is also the president who called Haiti a "shithole country." And we had some statements by the Secretary. First, in order to close off constitutional challenges, we need a clear statement. We get that from Webster v. Doe: there's a serious constitutional question lurking if Congress can close the courthouse to constitutional claims, so we want statutes to be really clear if they're doing that. Second, the way we would evaluate this claim, if we actually look at it, is whether race is a motivating factor. It doesn't need to be the motivating factor, or the only motivating factor. It just needs to be a motivating factor.

Marc: And the TPS statute doesn't separate constitutional from statutory claims. It just says "no judicial review of any determination."

Gwen: Right. So the Court declines to resolve whether the bar clears the Webster standard — that standard that we need a clear statement to foreclose this review. They sidestep by just ruling on the merits of any equal protection claim they might make, and say it would fail, so we don't need to decide the jurisdictional question.

Marc: So the likelihood of success on jurisdiction, and the likelihood of success on the merits, both feed the same calculation when you're deciding interim relief.

Gwen: We could say that potentially makes sense procedurally, but the harder question is what they actually do on the merits. So Arlington Heights — again, that's the framework that everyone agrees is going to apply to these types of questions — asks whether a discriminatory purpose was a motivating factor. Not the only factor, not the primary factor — a motivating factor. That's potentially one of many.

Marc: And the test calls for a sensitive inquiry into the surrounding statements and historical context.

Gwen: Those statements from earlier, those are on the record. There's also the question Trump asked about why we would take immigrants from these countries instead of Norway and Sweden. That Haitian immigration is "like a death wish," and that those immigrants are "poisoning the blood" of the nation. The district court, not surprisingly, took these statements as evidence of racial animus.

Marc: And the Supreme Court's reading?

Gwen: The Supreme Court says that none of this is "overtly racial," and that all of it could rest on race-neutral justifications. Poverty in Haiti is real. The TPS criteria guarantee that many designated countries have difficult conditions. An opponent of TPS could oppose it on economic grounds.

Marc: But Arlington Heights doesn't ask whether race is the sole cause. It just asks whether race was a motivating factor among others. The majority's race-neutral story is that the administration just doesn't like TPS as a category. Both of these things can be true at the same time.

Gwen: Right. That's what Kagan's saying. She's saying Arlington Heights is a both-and test, not an either-or test. The administration is generally hostile to immigration and to past TPS policy, and there are race-neutral reasons for that. But also, racial reasons appear to be motivating the actions here. Both could be motivating factors. The Court collapses this into a single inquiry — what is the most plausible reason — and resolves it for the race-neutral story. That is not the test Arlington Heights sets up.

Marc: And the consequence?

Gwen: So here are statements that would have absolutely anchored an equal protection finding twenty years ago. They do not do so now. Not because the doctrine formally changed, but because the application did. Statements that the majority itself calls "heated" and declines to put into the opinion get treated as policy expression, not racial animus. That is a doctrinal move dressed as a factual finding.

Marc: And that's the equal protection fight that's on the merits.

Gwen: Thomas is staking out an even stronger position. He filed a concurrence just by himself, agreeing in the result — he couldn't get anyone else to sign on — saying the TPS statute does bar constitutional claims. And that's fine, because Congress can take constitutional claims away from the federal courts entirely. He says even if the bar were ambiguous, the Webster clear-statement rule rests on a mistake: there's no serious constitutional question if Congress bars constitutional review, because the lower federal courts are creatures of statute and Congress can take their jurisdiction away. He would reconsider Webster.

Marc: So — one justice, but a potential roadmap.

Gwen: That's how these things seem to work now. And he goes further still. He says the equal protection claim fails on a deeper ground: noncitizens have no equal protection rights against the federal government. The Fifth Amendment has no Equal Protection Clause. The case that read one into it — Bolling v. Sharpe, a 1954 companion to Brown, the decision that desegregated the D.C. schools — was, in his view, wrong. That's an episode we'll get to, not a fight for today. But the point is the pattern: Webster's clear-statement rule, Bolling's equal protection guarantee against the federal government — two protections that the majority theoretically left standing, and we have at least one person with a knife ready for each. You write a concurrence, you mark the territory, and you wait.

Marc: So the majority reads a jurisdictional bar to swallow the procedural steps that have come before it, and Thomas is willing to read it to swallow the constitutional claims as well. This is a case about what "no judicial review" means.

Gwen: Right — and what it means keeps expanding. This is why the presumption of reviewability matters; said we'd come back to it. This is the rule that says agency action is reviewable unless Congress clearly says otherwise. It's the default the whole Administrative Procedure Act is built on. Here's the section, at 701.

Marc [reading]: "This chapter applies, according to the provisions thereof, except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law."

Gwen: So we've got two exceptions. But this whole idea — all of administrative procedure — only works if these are exceptions that stay narrow. Mullin is testing whether they still are.

Marc: Which is why this matters past Miot and Doe.

Gwen: Right. So think about what administrative law actually is. It is, above all, the procedures agencies have to follow, and the way we make sure they follow them. That's the whole thing. Congress writes rules an agency has to obey; when the agency doesn't, someone gets to walk into court and say so. Mullin says: not here. The statute told the Secretary to consult. The Secretary didn't. And now no court is allowed to look. That is not a narrow ruling. That is a court removing the mechanism that makes procedural requirements mean anything.

Marc: Which is why this is the case to open next season on.

Gwen: Right. So judicial review is the single most important power-allocation device in administrative law. Slaughter took the check inside the executive away — now the president controls everything there. And Mullin narrows the check outside it. What's left of that architecture is what this season is about. We're going to talk about every doctrine that decides whether a court gets to look at all, and how they decide things when they do — because you can fight a lot harder when you understand why something matters. And this Court just made it a lot easier to lose things without noticing.

Marc: Okay — so sixteen episodes on the architecture that's under the most pressure it's faced in eighty years.

Gwen: Right, and it's not one-way. Learning Resources, the same term — that's the one that struck down the IEEPA tariffs, because the Court held the president lacked statutory authority to do it. Again, that's not a determination you can make if you refuse to even look at it. Judicial review is critical.

Marc: So that does it for today's episode on Administrative Remedies. Thank you for joining us today. Please — if you enjoy this podcast, enjoy this episode — give us a like on Spotify, iTunes, or whatever platform you're listening on. And be sure to tune in next time, where we'll continue to dive into the contours of administrative law. Because remember: you can't fix what you don't understand.Related Guides

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