Due Process, Deferred

The Roberts Court’s TPS ruling isn’t just about immigration—it redefines who is protected by the Constitution.

Trump administration explosive expansion of nation’s immigration detention system / KSAT

The Court’s decision allows the government to strip legal protections from hundreds of thousands of people with minimal judicial oversight, raising profound questions about the future of constitutional due process.

The Roberts Majority Re-energizes The ICE Gulag

Several months ago, The Steady State published a series of articles that detailed the vertically integrated nature of the Trump Administration’s mass deportation apparatus, an effort that required collaboration of all three branches of government and the cooperation of America’s big tech firms. There were two inhibiting factors to mass incarceration and deportation: local communities were pushing back against ICE purchases of warehouses in small towns where an increasing number of non-citizens could be housed, and lower courts had pushed back against some of the most repressive measures enacted by the administration. These court rulings provided some protections to undocumented individuals in the United States, providing temporary limitations on the universe of potential targets for the ICE apprehension units.

District courts and Courts of Appeal specifically objected to the way in which former Secretary of Homeland Security (DHS), Kristi Noem, acted to revoke Temporary Protective Status (TPS) across the board, finding that she had failed to follow proper procedures in terminating TPS for Haitians and Syrians, some of whom have been in the country for decades.

Noem’s replacement, Markwayne Mullin, recently announced that the DHS was looking into a number of warehouse purchases in which it appeared that DHS paid substantially over market for its Gulag sites. In part, this reflected a hiatus in mass apprehensions as DHS changed its focus from major operations in large Democratic run cities to a broader (and lower-key) effort that targeted undocumented persons in smaller communities.

These warehouses, however, may soon have thousands of new temporary inhabitants, courtesy of the Roberts Majority’s decision to green light the termination of Temporary Protective Status (TPS) and allow the mass deportation apparatus to swing back into action against over a million people.

The Argument

In a decision handed down on June 25, the Roberts Majority ruled that Kristi Noem acted properly and without racial animus when she terminated temporary protective status for several hundred thousand Haitians, or as she called them, “killers, leeches, and entitlement junkies”, some of whom have been living and working productively in the United States for decades. Samuel Alito, writing for the Roberts Majority, held that the TPS statute restricted the courts from reviewing the determination of the Secretary of DHS. In a shocking display of judicial modesty, especially for a Majority that recently terminated the Voting Rights Act, Alito also concluded that the statute even prevented judicial review of whether Noem even followed the required statutory procedures. While he acknowledged that courts could determine whether there were any constitutional claims, he rejected any allegation that the decision was in any way racially motivated. Clarence Thomas, even more modest about judicial powers, wrote a separate concurrence arguing that courts did not have the power to review even constitutional claims.

While the Roberts Majority alluded to “heated language” directed by the President at Haitians, Justice Elena Kagan did not hold back, listing numerous statements by both Trump and Noem that are “so repellent and racially inflected that the majority declines to put them in print.” Justice Kagan also disagreed with the Roberts Majority’s conclusion that there was no room for judicial review in determining the process by which TPS status was terminated.

The Consequences

Temporary Protective Status has existed since 1990 to allow individuals in the United States to remain when it is not safe for them to return to their home country due to warfare or natural disaster. Many of the individuals who just lost legal status arrived in this country decades ago as young children, have grown up in the US, and have developed productive lives while living and working legally. They will be dropped into countries that the State Department recognizes as war-torn and unsafe for travel. The other option is being involuntarily flown to a third country such as South Sudan, Uganda, or the Democratic Republic of the Congo, where civil war and outbreaks of disease such as Ebola provide an equally unsafe environment. All of this is sadly reminiscent of the case of the MS St. Louis, where in 1939 the United States turned away over 900 Jewish refugees from Nazi Germany and forced the ship to return to Europe. Over 250 of these individuals later perished in the Holocaust.

The Fourteenth Amendment provides protections to “any person” in the United States against the deprivation of life, liberty, or property, without due process of law. The Roberts Majority, once again restricting fundamental human rights, has blessed the immediate change in legal status of hundreds of thousands of human beings. The Roberts Majority has provided a legal basis for the Government to deprive hundreds of thousands of individuals of liberty and property without any due process. They have empowered the ICE apprehension teams to begin detaining individuals who, on June 24, 2026, had a legal right to live and work in the United States and store them in the Warehouse Gulag located around the country. And once the airplanes are available, these same individuals can be sent to locations where they may be deprived of their lives as well.

James Petrila spent over thirty years as a lawyer in the Intelligence Community, working at the National Security Agency and, for most of his career,at the Central Intelligence Agency. He has taught courses on counterterrorism law and legal issues at the CIA at the George Washington University School of Law. He is currently a senior advisor to the Institute for the Study of States of Exception and is a member of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 400 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.