The American Civil Liberties Union (ACLU) and two left-wing, pro-illegal alien labor unions filed suit Monday, claiming it is unconstitutional for the Department of Homeland Security’s (DHS) Temporary Protective Status (TPS) to be given any end date.
TPS is intended to be a short-term measure to avoid sending people home to countries that had just suffered natural disasters or other events that make it inhumane to do so. DHS, however, continually extended this status for some foreigners during the Bush and Obama administrations. Hondurans and Nicaraguans were granted TPS for 1999’s Hurricane Mitch, El Salvadorans for 2001’s earthquake, and Haitians for a quake in 2010. All were extended again and again until the Trump administration determined that each of these countries were no longer dangerous enough to sustain TPS, making illegal aliens from these countries again subject to deportation.
In their class-action suit, the ACLU, the International Union of Painters and Allied Trades (IUPAT), and UNITE HERE, argue — based largely on President Donald Trump’s alleged comments in a closed-door meeting: “Why are we having all these people from shithole countries come here?” — that any action that leads to the departure of people from the United States is a racist violation of the U.S. Constitution’s Fifth Amendment Due Process Clause. According to the complaint, the alleged comment “arises from the Trump Administration’s repeatedly-expressed racism toward non-white, non-European people from other countries.”
The open-border groups’ complaint ignores the fact that, in arguing for TPS to be extended, TPS advocates were themselves, in effect, arguing that these countries are too dangerous to send people home to the poor, violence-ridden, third-world countries for which TPS is ending.
The complaint also claims that because some of the illegal aliens who have lost TPS have children who are American citizens, putting any end date on TPS also violates the Fifth Amendment because these children have “a powerful interest in not being compelled to choose between two alternatives”: staying in American without their illegal alien parents or leaving the country with them. The complaint contains a long section of sympathetic stories about the horror that will face these children. For example, the court is told:
She is consistently on the honor roll and very active in her school and church. Her favorite subjects in school are math and science, and she aspires to become an obstetrician/gynecologist because she wants to help people. She plans to join the Student Council next year, and wants to be on the cheerleading and flag football teams. Outside of school, she is in her church choir. Prior to Defendants’ decision to end TPS, [the child] did not understand that it was a legal status that could be terminated. She is afraid of moving to Haiti with her mother and living in a country that she does not know, but she is also afraid of remaining in the United States with a foster family. She, her brother, and their parents have spent a lot of time speaking about TPS.
While the left-wing groups raise Administrative Procedure Act (APA) claims, unlike earlier suits against Trump’s immigration agenda, this class-action suit places the Fifth Amendment claim that Trump’s “racism” makes any administration decision that could potentially remove non-white illegal aliens unconstitutional, front and center. The APA appears as an afterthought in the complaint.
UNITE HERE is a union representing low-skilled workers, primarily in the service industry. For years, illegal alien advocacy has been one of its major political projects and it proudly uses its legally-protected collective bargaining rights to force employers not to cooperate with federal immigration enforcement and protect its illegal alien members, who make up an unpublished proportion of its 270,000 dues-payers. From 2005-2009, it was one of the major unions leading a breakaway from the AFL-CIO because that pan-union organization was insufficiently left-wing and politically active.
Given the widespread plaintiffs in the case, it could be filed nearly anywhere. The ACLU has chosen to file in the notoriously liberal, San Francisco-based U.S. District Court for the District of Northern California. Democrat-appointed judges in this court have already issued a number of preliminary decisions blocking aspects of President Trump and Attorney General Jeff Sessions’ anti-illegal immigration agenda including decisions to end President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program and cut off funding to “sanctuary” cities that violate federal law.
In doing so, these judges have shown a willingness to accept arguments from left-wing open-borders groups based on statements from administration officials. The ACLU and their fellow plaintiffs here seek to do the same with statements by the president and DHS Secretary Kristjen Nielsen.
The case is Ramos v. Nielsen, 18-cv-01554 in U.S. District Court for the District of Northern California.
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