JENNIFER M. CHACÓN is a professor of law and core member of the CRS faculty who focuses her research on immigration law, constitutional law and criminal law and procedure. She is a co-author of the casebook Immigration Law and Social Justice (Aspen) and of numerous articles, essays and book chapters on citizenship, immigration, border control and human trafficking. She joined the UCLA Law faculty in 2018 and has served on committees and panels focused on race and immigration issues for the Association of American Law Schools, the American Bar Foundation and other professional organizations.
The Constitution protects all people in the United States from discrimination on the basis of race and national origin. But as Critical Race Theory scholars have long noted, in the hands of conservative courts over the past 50 years, the equal protection doctrine has ceased to protect the members of historically disadvantaged groups. This was evident in the Supreme Court’s June 2020 opinion in Department of Homeland Security v. Regents of the University of California. While the Court narrowly held that President Trump’s revocation of the popular Deferred Action for Childhood Arrivals (DACA) program was invalid because it violated the procedural requirements of the Administrative Procedures Act (APA), the Court simultaneously held that the plaintiffs had failed to make out even a prima facie equal protection claim. Justice Sotomayor issued a stinging dissent from that portion of the decision, pointing to the President’s numerous toxic statements about Mexicans and noting that Mexicans make up the vast majority of DACA recipients. But she dissented alone.
The APA victory in Regents was hard-fought and of great practical importance. The decision staved off the immediate removal of the more than 650,000 people currently living and working in the United States under the fragile protections of DACA. But the Court’s abrupt foreclosure of the development of the equal protection claim raised in the Regents case is proving to be just as consequential – and in the long run will be much more significant – than the APA decision. In the wake of the Regents decision, we are witnessing what happens when courts consistently fail to acknowledge and redress the harms caused by racism in the political process.
For one thing, the decision has left the DACA program incredibly vulnerable to death by a thousand cuts. The decision made clear that the administration has the power to rescind DACA – even if the decision to do so is rooted in racial animus – so long as they jump through the necessary procedural hoops. Unsurprisingly, the heads of the Department of Homeland Security and of U.S. Citizenship and of Immigration Services (USCIS) are already slicing away at the program. Within days of the Regents decision, USCIS officials had issued new guidelines indicating that the agency would not process any new DACA applications and would shorten the timeline for renewals from two years to one. This seemed to fly in the face of the Supreme Court’s declaration that changes to the program would require the agency to weigh the reliance interests involved when tinkering with the DACA program. No such weighing has taken place.
More generally, as I have explained in prior scholarship, the Court’s decision to ignore the Trump Administration’s racism for three terms running – first in Trump v. Hawaii, then in Department of Commerce v. New York and finally this term in Regents – has given free rein to the administration to enact policy changes driven by racial animus.
Recently, President Trump and his close immigration advisors demonstrated their racial animus through immigration policy with their decision to revoke Temporary Protected Status (TPS) designations for immigrants from Sudan, Nicaragua, Haiti and El Salvador. TPS is a form of humanitarian relief created by Congress to protect noncitizens who might otherwise be subject to deportation or exclusion from being returned to countries stricken by natural disaster, armed conflict, or other “extraordinary and temporary conditions….” As a general rule, TPS revocations occur after country-conditions experts in the administration evaluate evidence of changed country conditions and decide that it is safe for TPS recipients to return to their home countries.
But there are clear signs that these recent TPS revocations were based not on evidence but on the racist attitudes of high-ranking administration officials and the President himself. There is a lengthy record of hostile comments made by President Trump, his influential immigration advisor Stephen Miller and other top-ranking administration officials about immigrants from Haiti, Africa, Central America and Mexico. There is also vivid record evidence that the administration sought to terminate TPS despite the overwhelming country-conditions evidence that pointed in favor of keeping TPS in place. For example, the record reveals that one official, reading the recommendation to end TPS for Sudan, commented, “[t]his memo reads like one person who strongly supports extending TPS for Sudan wrote everything up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo.”
Yet, the Court’s growing track record of cases evinces a refusal to even entertain the notion that impermissible animus is at work. This has created unnecessary legal barriers to the equal protection claim made by those challenging the revocation of TPS. And in September 2020, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Ramos v. Wolf, finding insufficient evidence to support the plaintiffs’ equal protection challenge to the TPS revocation, and lifting a stay of that revocation. This decision paves the way for the possible removal of some 300,000 people in the United States, many of whom have citizen family members and have lived in the U.S. for decades.
The evidence that the Trump Administration’s termination of TPS is rooted in racism is clear – just as it was with the DACA rescission, the decision to add a citizenship question to the census, and other decisions before that. But, as all of these cases illustrate, courts are increasingly unwilling to play their necessary role in securing for the nation’s most vulnerable residents the equal protection that our Constitution guarantees.