Justice Samuel Alito claimed that comments from President Donald Trump and former Secretary of Homeland Security Kristi Noem were not “overtly racial” in a ruling stripping protections from Haitian and Syrian refugees.

The Supreme Court ruled 6-3 along ideological lines Thursday morning in Mullin v. Doe that the Trump administration could revoke Temporary Protected Status from Haitian and Syrian refugees. The reasoning was that the decision to revoke TPS was not “motivated by race,” but a general objection to the TPS program.

“Citing statements made by President Trump and former Secretary of Homeland Security Kristi Noem, one set of respondents advances an equal protection claim that Haiti’s TPS designation was terminated because of the racial makeup of that country’s population. But, ironically, one of respondents’ other arguments undermines the equal protection claim by offering a strong, race-neutral explanation for Haiti’s termination: namely, that the current administration, which has terminated every TPS designation that has come up for renewal, simply opposes the TPS program, at least as it has been implemented in the past,” Alito wrote.

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TPS has been the law of the land since 1990. The law allowed refugees from war-torn countries or countries that suffered devastating natural disasters to live in the United States. Though TPS was always intended to be temporary, as the name suggests, history moves slowly and many people would have to stay in the United States lest they be hurt or killed in their homelands.

In the case of Haiti, Alito said that while “it is a very poor country, and living conditions there are unquestionably difficult… poverty and deprivation are no reflection on character, and there is no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country’s ills.”

But Alito dismissed claims that the Trump administration’s decision to revoke TPS designations were based on race.

“None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications,” Alito wrote.

“Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago, and the statements cited by Miot respondents—especially those concerning Haiti and Haitian immigrants to this country—exemplify this development. But whatever one may think of the cited statements, they are insufficient to show that the termination of Haiti’s TPS designation was based on the race of the Haitian people. Ironically, both Doe and Miot respondents identify a strong, race-neutral explanation of these officials’ statements: the present administration’s general stance on immigration and its obvious antipathy toward past administrations’ TPS policies,” he continued.

As cited in the dissent by Justice Elena Kagan, the comments that are not “overtly racial” include—using her framing language:

• Haitians are “eating the dogs . . . . They’re eating the cats. They’re eating—they’re eating the pets of the people that live [in Springfield, Ohio].”
• Haitians are also eating “other things too that they’re not supposed to be.”
• Haitians in the United States “probably have AIDS.”
• Haiti is a “shithole country,” which is “filthy, dirty, [and] disgusting.”
• And: Haitian immigration is “like a death wish for our country.”
• Haitians, along with some others, are “poisoning the blood” of our country.
• “Why is it we only take people from shithole countries” like “Haiti [and] Somalia”? “Why cannot we have some people from Norway [and] Sweden?”

“The majority briefly replies that those remarks are not ‘overtly racial,’. .. but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any White community,” Kagan wrote. “The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.”

She added that it is not an “either/or” decision that either TPS was revoked from Haiti and Syria due to antipathy for the program or it was racially motivated, but that both can be true.

“If in addition to race-neutral reasons, race entered into the picture—even as a subsidiary factor—the Haiti TPS decision is irretrievably tainted. And here, the President’s own statements show that race did enter in— that, within what was surely a multi-cause decision, it was a motivating factor. Because that is all the Haiti plaintiffs need to show on their equal protection claim, the District Court was right to find that it is likely to succeed,” Kagan wrote.

This is the second win the SCOTUS has handed Trump Thursday on immigration issues. In another ruling, Alito wrote the decision to allow border police to block asylum seekers from entering the United States. In that case, Justice Sonia Sotomayor compared the majority’s decision to turning away Jewish refugees from Nazi Germany.

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Justice Sonia Sotomayor compared Thursday’s Supreme Court ruling that asylum seekers have not entered the U.S. at the border to one of the most shameful parts of U.S. history.

The Supreme Court issued four rulings on Thursday. One of them was in Mullin v. Al Otro Lado, which challenged a 2016 U.S. Customs and Border Patrol policy where border patrol officers stood at the U.S. border and kept asylum seekers from entering the country. The immigration activist group Al Otro Lado challenged the rule, arguing it “withheld inspection and asylum processing from aliens who arrive at the border.”

The Court decided 6-3 along ideological lines that the policy was legal, with Justice Samuel Alito invoking “ordinary speech” to explain his reasoning.

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“This case presents a straightforward question: whether an alien who seeks to enter the United States from Mexico ‘arrives in the United States’ when he or she is still in Mexico. In the decision below, the United States Court of Appeals for the Ninth Circuit answered ‘yes.’ That is wrong. In ordinary speech, no one would say that a person “arrives in” a place—for example, a house, a city, or a country—before the person enters that place. The context in which the phrase ‘arrives in the United States’ is used in the immigration statutes at issue here supports an ordinary-meaning reading. So does the presumption against extraterritoriality. We therefore reverse,” Alito wrote.

Justice Clarence Thomas wrote his own concurrence, which defended President Donald Trump’s power in determining immigration policy, writing “Congress, for its part, has no enumerated power to require the President to bring certain aliens into the country. The Constitution grants Congress the power to ‘establish an uniform Rule of Naturalization.’ … But, the class members in this case are not naturalized or even on the path to naturalization.”

“So, any statute that forced the President to allow aliens to cross the border against his will would appear to exceed Congress’s enumerated powers, and a court could not enforce it against the President,” Thomas added.

Sotomayor wrote a blistering dissent which, according to journalist Steve Vladeck, was read from the bench. In her dissent, Sotomayor tells the story of the M.S. St. Louis, a ship that set sail from Europe in 1939 with over 900 Jewish refugees fleeing Nazi Germany. The M.S. St. Louis sailed to Cuba and the United States. Both Cuba and the United States turned it away. In the United States’ case, it was due to strict immigration quotas and, as she writes, “the relevant quota was already filled for that year.”

The M.S. St. Louis sailed to Canada where it was again turned away, and went back to Europe.

“Tragically, over 500 of the refugees that had attempted to flee were trapped in Western Europe under German control, and over 250 of them died during the Holocaust. Most of them were ‘murdered in the killing centers of Auschwitz and Sobibór’ and ‘the rest died in internment camps, in hiding, or attempting to evade the Nazis,'” she wrote.

“Congress passed the Refugee Act in 1980 because it did not want this country to repeat the mistakes of its past. Yet if the refugees on the M. S. St. Louis were to walk up to a port of entry on our southern border today, the majority’s interpretation would allow immigration officers to refuse even to consider their asylum applications by physically blocking them from stepping foot onto U. S. soil,” Sotomayor added.

“The consequences of today’s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not. More dissenting people will be forced to walk along the U. S.-Mexico border in dangerous conditions, trying to find a port that will inspect them. More people will turn back and be subjected to violence because of something they cannot or should not have to change about themselves, such as their race, religion, nationality, or political opinion. Because this is neither what Congress said nor what its words permit, I respectfully dissent.”

Alito responded to Sotomayor’s dissent from the bench, Vladeck said—adding “That’s … unusual.” However, he declined to say what the substance of Alito’s response was. Audio for the ruling will be released this October, as is standard SCOTUS protocol.

President Donald Trump shared a clip from Fox News to boast about the increase in ships crossing the Strait of Hormuz since earlier this month. It’s still far below the number from before the Iran conflict started.

On Tuesday evening, Trump shared a clip to his social media platform Truth Social. It showed Fox News commentator Larry Kudlow talking about the increase in traffic through the strait. Kudlow served under Trump during his first term as the director of the National Economic Council. The clip opens with a table graphic showing 32 crossings of the Strait of Hormuz between June 12-14, and 93 from June 19-21.

Prior to the February 28 attacks that kicked off the Iranian conflict, there were 138 crossings per day on average, according to the BBC. When converted to the same three-day span of the Fox News graphic, that means 414 crossings on average—meaning the strait is only seeing 22.5% of the traffic prior to the conflict.

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Kudlow ignored the discrepancy, and instead used the figure to praise Trump’s mastery of international politics.

“You were basically almost halfway back of the original shortage of world oil supply, which was about 20% out of 100 billion barrels a day, so 20 billion barrels a day,” Kudlow said. “Whatever the IRGC people may or may not say—they’re like Baghdad Bob during the Iraqi war… they’re saying, for example, the Strait of Hormuz is closed, all right, and we’re having record transits right now.”

Kudlow then pivoted to a general defense of Trump’s Iran conflict, saying “women in the streets of Tehran are not wearing their hijabs, walking around in short skirts on motorcycles, saying things and singing songs, it’s as though they’ve lost the morality play that they tried to do.” He added that energy and gas prices are “coming down”—which AAA confirms— and says that funds given to Iran as part of the expected deal will be used to purchase commodities from America.

“So I think you know Trump is absolutely in control. There’s so much hand-wringing going on here, probably for political reasons, but I think he’s on the right track,” Kudlow said.

Earlier this month the House voted to stop the Iranian conflict, and the Senate was expected to stop it as well. But Wednesday night, the Senate backtracked and voted 50-47 against advancing the war powers resolution to Trump’s desk, according to NBC News. Trump would have then been forced to veto it, but this saves face for the president.

“Wow! The Senate just changed its vote on Iran from 50-48 against, to 50-47 for. Rand Paul and Bill Cassidy changed. Thank you to Leader John Thune, Lindsey Graham, Bernie Moreno, and all. This vote puts Iran on notice!” Trump wrote on Truth Social.

Image via Reuters