By Kerry Martin
Associate Editor, Vol. 24
How racist can the President of the United States be in determining immigration policy before he violates the Equal Protection Clause? A lot depends on who the target is—and with recipients of temporary protected status, Trump may have picked on the wrong people.
Donald Trump announced his candidacy with anti-Latino animus (“When Mexico sends its people…”) and has not backed down since entering the White House. In response to allegations of crime by Central American immigrants on Long Island, President Trump remarked: “They come from Central America. They’re tougher than any people you’ve ever met. They’re killing and raping everybody out there.” Of Haitians, Trump said they “all have AIDS” and asked, “why do we need more Haitians?” And in response to an immigration proposal that would have included protections for Salvadorans, Haitians, and some Africans, Trump inquired, “Why are we having all these people from shithole countries come here?”
This racial animus seems inextricable from every immigration policy decision made by the Trump Administration, from ramping up internal enforcement and border protection, to pushing for legislation that would curb “chain migration” and fund a border wall. But it has proven difficult, at least for purposes of stating a legal claim, to tie these broad-sweeping policy choices to Trump’s racist statements, even if “[e]veryone knows” that the two are related.
But there is an area of immigration policy over which the President and Executive Branch have substantial control, which by definition singles out the people of individual countries, and which has become the target of at least five lawsuits alleging racial discrimination in violation of the Equal Protection Clause: temporary protected status, or TPS.
The Secretary of Homeland Security, under the President’s authority, can trigger TPS in response to “an ongoing armed conflict,” “an earthquake, flood, drought, epidemic, or other environmental disaster,” or “extraordinary and temporary conditions” in a country to which it is unsafe to send people back. Before terminating TPS, the Secretary must determine that the country “no longer meets conditions for designation”; otherwise, TPS is automatically extended for at least six months. Under Presidents Obama and Bush, TPS designations for impoverished or unstable countries like El Salvador, Honduras, Nicaragua, Haiti, and Sudan were consistently renewed for the maximum allowable eighteen months, even though the effects of the specific incidents triggering TPS may have already abated.
The Trump Administration changed this. On November 20, 2017, it announced that Haitian TPS would be terminated in eighteen months, affecting 59,000 Haitian TPS holders; on January 8, 2018, it delivered the same news to 200,000 Salvadoran TPS holders, the largest group of TPS recipients; and on May 4, 2018, the same became true for 57,000 Honduran TPS holders. The 1,000 Sudanese TPS holders were given only twelve months before their status would be terminated, as were the 5,300 Nicaraguan TPS holders, even as new waves of violence racked their country.
Removed from context, these terminations may appear valid: the conditions that led to conferring TPS—Haiti’s 2010 earthquake, El Salvador’s 2001 earthquake, Honduras and Nicaragua’s 1998 hurricane, Sudan’s 1997 armed conflict—arguably no longer pose as dire a threat to people returning to those countries. But the stakes remain extremely high for these TPS holders, who have built lives and families here in the U.S., and whose countries of origin remain dangerous and destitute.
So, if we know that President Trump, the individual ultimately responsible for the termination of TPS, authorized and even pushed for terminating TPS for people from countries about which he has made overtly racist remarks, and if we know that the Equal Protection Clause forbids state actors, including the federal government, from acting with discriminatory purpose towards groups on account of race, then why is this not an easy case?
Two reasons: immigration is different; and equal protection claims are difficult.
There exists a deep-rooted notion that sovereigns have “plenary power” over immigration, that the power to draw a country’s borders and determine who may cross through them is so essential to the function of a nation-state that it was not even mentioned in the Constitution and therefore supersedes questions of constitutionality. The foundational cases of this principle came several decades before Bolling v. Sharpe, which ruled that the Fifth Amendment prohibits the federal government from discriminating on the basis of race. But Bolling seems to have left the plenary power doctrine undisturbed, at least until this summer’s decision in the “Travel Ban” or “Muslim Ban” case — Trump v. Hawaii.
Hawaii, decided after all five TPS suits had been filed, may not be controlling precedent for the TPS cases. But does it suggest that they could meet the same sad fate?
While commentators are conflicted as to whether the Hawaii decision expanded or limited the plenary power doctrine, it undeniably left intact an Executive Branch policy that denied admission to noncitizens from a select group of eight countries, six of which have majority Arab or Muslim populations, even after Trump had made statements expressing animus towards these groups.
The “Travel Ban” authorized by Executive Order 13,780 (EO-2) has much in common with the terminations of TPS: they both target nationals of specific countries; they both affect people who are or would be considered racial or ethnic minorities in the U.S.; and they were both authorized by the Executive Branch without any legislative intervention. And while Hawaii was not an Equal Protection challenge (as the TPS cases are), Hawaii addressed a provision in the Immigration and Nationality Act with similar language to the Equal Protection Clause and its modern interpretations.
It is plausible to read Hawaii as saying that Constitution permits the President to make overtly racist decisions with regard to all immigration law—a reading that would be disastrous to the TPS cases. The majority in Hawaii did not deny the possibility of anti-Arab or anti-Muslim animus on the President’s part, but it was highly deferential to the President’s decision nonetheless, applying nothing close to the strict scrutiny often thought to be required of racially discriminatory laws. This suggests that courts may decline to strictly review allegations of racial animus in the TPS terminations, on the basis that the terminations fall within the Executive’s affirmedly-broad discretion on immigration matters.
But one of the district court judges handling a TPS case does not read Hawaii so broadly. After Hawaii, Judge Edward M. Chen of the Northern District of California requested supplemental briefings from the parties in Ramos v. Nielsen. Even after considering the government’s defense in light of Hawaii, on August 6, 2018, Judge Chen denied the government’s Motion to Dismiss on all grounds, including on its defenses to the alleged Equal Protection violation. Judge Chen wrote:
In light of the Supreme Court‘s decision in Trump v. Hawaii, 585 U.S. ___, 138 S.Ct. 2392 (2018), the Court must determine whether Trump alters [this case’s] analysis by mandating deferential rational basis review rather than traditional strict scrutiny under Arlington Heights even where government conduct is motivated by race, color, or ethnicity. The Court is not persuaded that Trump’s standard of deferential review applies here . . . The equal protection guarantee applies with its conventional force to all persons in the United States . . . TPS beneficiaries residing in the United States are such persons. Accordingly, the deferential standard of review in Trump does not apply.
Judge Chen seized on a key distinction between the TPS recipients before him and the people affected by the Travel Ban: TPS recipients are “in the United States.” Under immigration law, this is analogous to having been “admitted.” This may seem like an obvious point, but it is crucial to Judge Chen’s opinion and may make all the difference for these plaintiffs moving forward.
Denying the Motion to Dismiss allowed plaintiffs to obtain discovery of correspondence between White House and Homeland Security officials regarding the decisions to terminate TPS, revealing a zealous push by the Administration to end the program, against clear evidence of the persistent danger in TPS recipients’ countries. The equal protection claim becomes even stronger.
And then, a major victory: on October 4, 2018, Judge Chen issued a nationwide preliminary injunction, halting the terminations of TPS for Salvadorans, Nicaraguans, Haitians, and Sudanese. Deadlines were looming—Sudan’s was less than a month away—so the ruling allowed more than 300,000 TPS holders to heave a sigh of relief.
In his injunction order, Judge Chen pointed to the high probability that the TPS terminations violated the Equal Protection Clause:
There is . . . evidence that [the TPS terminations] may have been done in order to implement and justify a pre-ordained result desired by the White House. Plaintiffs have . . . raised serious questions whether the actions taken by the Acting Secretary or Secretary was influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution. The issues are at least serious enough to preserve the status quo.
But as strong as the equal protection claim may now seem, a government appeal is practically guaranteed; Judge Chen will not get the last word on whether this is constitutional. It looks ever more likely that this case will come before our country’s highest court, at its most conservative moment in history.
There are two paths the Supreme Court could take to reject the TPS recipients’ equal protection claim: Hawaii or Arlington Heights. Citing Hawaii, the Court might hold that the Executive’s power to control immigration is practically untethered by constitutional restraints. It could reject Judge Chen’s finding that TPS recipients are “in the United States” under immigration law, thereby stripping them of equal protection. This would probably require a finding that TPS recipients are not “admitted” into the United States under immigration law, a finding which might have a morsel of merit but would be an uphill battle. If the Court felt that the equal protection claim would be fatal, they could parry it in this way.
Alternatively, if the Court felt like it could not indemnify the Administration by finding TPS holders ineligible for TPS holders, it could still uphold the terminations by highlighting the stringent standard for equal protection claims under Arlington Heights. The Arlington Heights doctrine requires a showing that discrimination was a “motivating factor” for an equal protection claim to survive. Even if plaintiffs could prove that the TPS termination “was motivated in part by racially discriminatory purpose,” this would not necessarily result in its invalidation if the government can show that the same decision would still have been made had there been no discriminatory purpose. While the context of the TPS terminations makes racial animus stick out as the undeniable central motivating factor, bear in mind that equal protection law is littered with dismissed cases and losses on appeal by plaintiffs suing to stop all of our country’s worst abuses.
Still, if TPS recipients are in fact “in the United States,” then Trump found the wrong immigrants to bully. TPS recipients have reason for hope—because however slim their chances would be at winning an equal protection claim before the Supreme Court, at least they are allowed to state the claim at all. They are here, and so their fight goes on.
 See, e.g., Michelle Ye Hee Lee, Donald Trump’s False Comments Connecting Mexican Immigrants and Crime, Wash. Post: Fact Check (Jul. 8, 2015).
 Michael Scherer, 2016 TIME Person of the Year: Donald Trump, TIME, Dec. 2016.
 Michael D. Shear, Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration
Agenda, N.Y. Times, Dec. 23, 2017.
 Josh Dawsey, Trump Derides Protections for Immigrants From ‘Shithole’ Countries, Wash. Post, Jan. 12, 2018.
 Plessy v. Ferguson, 163 U.S. 537, 557 (1896) (Harlan, J., dissenting).
 See Complaint, Saget v. Trump, No. 1:18-cv-01599-WFK-ST (E.D.N.Y. May 31, 2018); Complaint, Centro Presente v. Trump, No. 1:18-cv-10340 (D. Mass. Feb. 22, 2018); Complaint, NAACP v. Trump, No. 1:17-cv-01907-JDB (D.D.C. Sept, 18, 2017); Complaint, CASA de Maryland v. Trump, No: 8:18-cv-00845-GJH (D. Md. Mar. 23, 2018); Complaint, Ramos v. Nielsen, No. 3:18-cv-01554 (N.D. Cal. Mar. 12, 2018).
 8 U.S.C. § 1254a(b)(1) (West 2016).
 8 U.S.C. § 1254a(b)(3)(B) (West 2016).
 8 U.S.C. § 1254a(b)(3)(C) (West 2016).
 Mica Rosenberg & Gustavo Palencia, Trump Administration Moves to Expel Some 57,000 Hondurans, Reuters, May 4, 2018.
 Tal Kopan, DHS to End Protections for Sudanese Immigrants, CNN, Sept. 18, 2017.
 U.S. to End Protected Status for Nicaraguan Immigrants in 2019, Reuters, Nov. 6, 2017.
 Robert Muggah, Nicaragua Was One of Latin America’s Least Violent Countries. Now It’s in a Tailspin, L.A. Tɪᴍᴇꜱ, Jul. 19, 2018.
 Even officials from the Trump Administration and the Department of Homeland Security seemed to recognize this while it was putting some of the TPS terminations into effect, as document discovery in one of the TPS cases has revealed. See Tal Kopan, ‘It IS bad there’: Emails reveal Trump officials pushing for immigrant protection terminations, CNN, Aug. 27, 2018.
 See, e.g., Bolling v. Sharpe, 347 U.S. 497 (1954).
 See, e.g., Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).
 See, e.g., Chae Chan Ping v. United States, 130 U.S. 581 (1889); Ekiu v. United States, 142 U.S. 651 (1892); Fong Yue Ting v. United States, 149 U.S. 698 (1893); Yamataya v. Fisher, 189 U.S. 86 (1903) (“Congress may exclude aliens of a particular race from the United States.”).
 Bolling, supra note 17.
 Marty Lederman, Contrary to Popular Belief, the Court Did Not Hold that the Travel Ban is Lawful—Anything But, Jᴜꜱᴛ Sᴇᴄᴜʀɪᴛʏ, July 2, 2018 (“[U]ntil this week, the post-Bolling Court had never opined on the question of whether the political branches may use race or religion as a criterion for entry.”); Trump v. Hawaii, 585 U.S. _ (2018).
 Eugene Volokh, The “Travel Ban” Decision, in One (Non-Snarky) Sentence, Rᴇᴀꜱᴏɴ: Tʜᴇ Vᴏʟᴏᴋʜ Cᴏɴꜱᴘɪʀᴀᴄʏ, Jun. 26, 2018 (“The U.S. has nearly unlimited power to decide when foreigners are admitted to the country, even based on factors (such as ideology, religion, and likely race and sex) that would be unconstitutional as to people already in the country.”)
 Lederman, supra note 22.
 See 8 U.S.C. 1152(a)(1)(A) (“[N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”).
 Writing for the majority, Chief Justice Roberts does not deny that animus was a factor in issuing the Executive Order, he only says that animus was not the only factor. Hawaii, 585 U.S. at __ (Roberts, C.J.) (“It cannot be said . . . that the policy is inexplicable by anything but animus”) (citation and internal quotation marks omitted).
 The majority opinion refers to Kleindienst v. Mandel, 408 U.S. 753 (1972), which granted wide discretion to the Executive to deny admission to a noncitizen, stating “our opinions have reaffirmed and applied [Mandel’s] deferential standard of review across different contexts and constitutional claims.” Id. at __; see also id. at __ (Kennedy, J., concurring) (stressing the importance of deference to the Executive).
 Ramos, supra note 7.
 Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D. Cal. 2018).
 See Kopan, supra note 17.
 Catherine E. Shoichet, Federal Judge Temporarily Blocks Trump Administration from Ending TPS, CNN, Oct. 4, 2018.
 See Dara Lind, Judge Blocks Trump’s Efforts to End Temporary Protected Status for 300,000 Immigrants, Vᴏx, Oct. 4, 2018 (“At some point, it’s likely that the TPS case will make its way to the Supreme Court, where the administration will likely prevail — if it has appointed a conservative justice by then.”) Two days after this article’s publication, Brett Kavanaugh’s nomination to the Supreme Court was confirmed by Senate vote.
 Hawaii, 585 U.S. at __.
 See, e.g., Catholic Legal Immigration Network, Inc., Possible limits to “TPS as an admission,” https://cliniclegal.org/resources/possible-limits-tps-admission. (“[C]ourts rely on the language of INA § 244(f)(4) to hold that TPS qualifies as an admission for purposes of adjustment of status. This statute states: ‘During the period in which an alien is granted temporary protected status under this section . . . (4) for purposes of adjustment of status under section 245 . . . the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.’ INA § 244(f)(4) (emphasis added) Notice that the beneficial clause for purposes of adjustment of status is limited to the period in which the person is granted TPS. In other words, the Department of Homeland Security may argue that TPS only constitutes an admission while the applicant is in valid TPS status, and that the TPS holder reverts to an unadmitted status if TPS is terminated or expired. The idea that a TPS holder might “revert” to an unadmitted status is bolstered by the Ninth Circuit’s decision in United States v. Hernandez-Arias, 757 F.3d 874 (9th Cir. 2014).”)
 Arlington Heights, 429 U.S. 252.