WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a brief in the U.S. District Court for the Northern District of California opposing an effort by anti-borders activists to extend Temporary Protected Status (TPS) for yet other groups of foreign nationals—in this case, citizens of Honduras, Nepal, and Nicaragua—further into the future.
Under a statute, the Secretary of Homeland Security may determine whether persons from a given country, because of disastrous conditions in their homeland, may live in the United States for a set period of time, and may renew this status for further such periods if conditions warrant.
Before leaving office, Biden’s Secretary of Homeland Security, Alejandro Mayorkas, extended TPS for Hondurans, Nepalese, and Nicaraguans. President Trump’s Secretary of Homeland Security, Kristi Noem, reached contrary determinations, and canceled those extensions. Plaintiffs claim that Noem acted unlawfully in doing so, arguing that the statute bars a secretary from reconsidering prior actions.
In its brief, however, IRLI shows that, according to longstanding Supreme Court precedent, the President, as Commander-in-Chief, has inherent authority to protect the nation by excluding aliens. This means that plaintiffs cannot succeed in their claim, because Noem’s actions were taken at the direction of the President in an executive order, and were thus presidential actions the courts lack jurisdiction to review.
IRLI also shows that plaintiffs’ interpretation of the TPS statute—namely, that it precludes the secretary from undoing prior extensions—even assuming it is permissible, is far from the only interpretation possible. Another, at least equally sound interpretation is that the TPS statute implicitly allows such cancelations—and this latter interpretation is preferable, because it avoids the conflict plaintiffs’ interpretation creates between the statute and the President’s inherent, constitutional authority.
“This lawsuit invites the court to ignore—and thus block—the President’s authority as Commander in Chief,” said Christopher J. Hajec, acting executive director and general counsel of IRLI. “The Supreme Court has repeatedly recognized the President’s inherent authority to exclude aliens, and how that authority operated here, as we show, made Secretary Noem’s actions lawful on a number of grounds. We hope the court refuses to make the basic constitutional mistake of discounting the President’s authority over foreign affairs and immigration, and denies relief.”
The case is National TPS Alliance v. Noem, No. 3:25-cv-05687 (N.D. Cal.).
