New emails have thrown an unexpected wrench into the Supreme Court fight over Haiti’s Temporary Protected Status, raising fresh doubts about how the Trump administration handled its review before canceling the program. Lawyers for Haitian TPS beneficiaries asked the justices to dismiss the appeal after receiving the emails through another case.
The dispute centers on whether the Department of Homeland Security properly consulted with the State Department before ending Haiti TPS. The Trump administration said the consultation happened, but it argued for a very broad reading of what “consult” means.
Emails that could change the record
According to a filing cited by www.cnn.com, one DHS official wrote on June 2 that the “State recommendation for Haiti TPS has not come in.” Days later, then DHS Secretary Kristi Noem made an initial attempt to end the Haiti designation.
The Haitian attorneys said the emails suggest DHS had not yet received the State Department’s recommendation when the decision was made. They argued the record was still developing and that the Supreme Court should let the case be decided below on a complete factual record.
“Because the relevant record is still being developed even today, the ‘circumstances’ of this case ‘were not fully apprehended’ — indeed, could not have been fully apprehended — ‘at the time’” the case was granted, the attorneys for the Haitians told the Supreme Court. “The prudent and appropriate course is to dismiss the writ and allow the case to be decided below on a complete factual record.”
A broad definition of ‘consult’
During oral arguments, the Justice Department took a much looser position. US Solicitor General D. John Sauer told the justices in April, “If you’ve asked, you’ve consulted.”
Justice Elena Kagan pushed back on that logic with a hypothetical about an unresponsive reply. Sauer answered that even if State said something completely unresponsive, DHS would still have consulted if it sought input.
The Justice Department repeated that argument in response to the dismissal request, saying the newly disclosed emails related to an earlier effort to cancel the program. It also said the law only required DHS to ask State for its recommendations, not receive them.
The case now sits at the intersection of immigration policy and administrative procedure, with the newly surfaced emails adding pressure to a process that the administration said was already complete. The justices must weigh whether the appeal should proceed before the underlying record is fully settled.
