Solicitor General John Sauer and several Supreme Court Justices on Wednesday sought to muddy the waters around whether President Trump’s comments that Haiti and other majority-black nations are “shithole countries” were racist.
It came in oral arguments in two consolidated cases, Mullin v. Doe and Trump v. Miot, in which the fate of hundreds of thousands of Haitian and Syrian migrants in the United States on Temporary Protected Status hangs in the balance. Trump has tried to end their status, paving the way for their deportation; the TPS holders argue that Trump officials made a series of procedural errors — wrapped up in racial animus — in ending their status, rendering the move invalid. Even a victory on the procedural issues in this case would likely force the administration to merely restart the process of ending their status.
The core legal issue here is how far judges can go towards deciding whether the process leading to a TPS revocation was adequate, or if they can only consider the final decision. A lower court found that former DHS Secretary Kristi Noem failed to meet certain statutory requirements — including consulting with other agencies and analyzing the economic impact — before moving to end their TPS status.
Instead, attorneys for the TPS holders said, Noem immediately attributed her decision to Trump.
“We are getting direction” from Trump, she said after revoking Syrians’ TPS, he is “pausing this program.”
Ahilan Arulanantham, an attorney for Syrian TPS holders, described that statement in oral arguments as “a very rare outlier case where the secretary actually said on national television the day after the decision that she was motivated by an impermissible factor.”
More explosively, a district judge found that the decision to end TPS for Haitians was at least partly motivated by racial animus. That finding meant that much of Wednesday’s oral arguments revolved around ugly remarks from Trump and other senior administration officials about Haitians.
Trump spent part of the 2024 campaign demonizing Haitian immigrants in particular and promising to deport them. Much of that focused on the Ohio town of Springfield, where a community of Haitian TPS holders had moved in recent years. A group of neo-Nazis, along with Trump and JD Vance, portrayed them as “invaders” who were “eating dogs and cats.”
The three liberal justices were the most vocal on this point. Justice Ketanji Brown Jackson needled Solicitor General Sauer at one point, asking about Trump saying that immigrants are “poisoning the blood of Americans” and that they have “bad genes.”
“They presented them wrenched from context,” Sauer replied. “You can look at each one of those statements — they’re talking about problems of crime, poverty, welfare dependency — again, problems that have been emphasized again and again by not just President Trump, not just the Secretary, but many others who favor a tough immigration policy.”
Jackson pushed further, asking Sauer whether there has to be “an actual racial epithet,” and whether the court can review evidence including bans on African immigrants while welcoming “immigrants from places like Norway and Denmark and white South Africans.”
“Your view is that it’s not appropriate for the court to take into account that kind of evidence or the context in which all of this is happening?”
The conservatives mostly stayed silent during Sauer’s time. At one point, he accused district courts that ruled against the administration of acting like “junior varsity secretaries of state.” Justice Amy Coney Barrett asked Sauer about the constitutional standard for deciding on the procedure; later, she asked Arulanantham whether the the consultation requirement that the law mandates is a “box-checking exercise.”
Towards the end of the arguments, Justice Samuel Alito tried to muddy the waters around race by prodding attorney Geoffrey Pipoly, who represents Haitian TPS holders, to define who is “white.” At one point, he noted that he does not like “dividing up the people of the world arbitrarily into three racial groups.”
“If you put Syrians, Turks, Greeks, and other people who live around the Mediterranean in a lineup, do you think you could say those people, that all of them, are they all non-white?” he asked.
“Syrians, I think, may be classified as white for the purposes of the State Department, or under certain government programs,” Pipoly replied. “But again, I think race is, you’d have to poll the public to know what they think the race of a Syrian is.”
One legal commentator described the exchange as hearkening back to late 19th century SCOTUS debates around “scientific” means of delineating races. Alito went further, implicitly responding to Justice Jackson’s earlier line of questioning.
“Poll the American people? Do they think Syrians are white?” he asked Pipoly, who replied: “I wouldnt think that most would, Justice Alito.”
Alito then asked about how to classify Turks, Greeks, and Southern Italians — to some laughter — before Pipoly remarked that “120 years ago, when we had our last wave of European immigration, southern Italians were not considered white. So I think our concept of these things evolves over time.”
“You have a really large, really broad definition of who is white and not white,” Alito replied. “As I said, I don’t like dividing the people of the world into these groups.”
Pipoly then said that under the law, racial classification is irrelevant. What matters is that “bare dislike of an unpopular group” is enough to invalidate the policy.
