In an unusual, last-minute twist in the case, the lawyers representing the Haitian TPS beneficiaries asked the Supreme Court to dismiss the appeal because of new emails they received documenting the Trump administration’s review process before it decided to cancel the program.
Part of the case turned on whether the Department of Homeland Security consulted with the Department of State about the conditions in Haiti before canceling the program. The Trump administration insisted that consultation took place, though it defined the term “consult” very broadly.
But the attorneys involved with the case said they obtained emails through another court case suggesting that DHS had not yet received a recommendation from State at the time the decision was made. On June 2, the attorneys told the Supreme Court in a filing this week, one DHS official wrote 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 TPS designation for Haiti.
But, during the oral arguments, the Justice Department said it would have checked the “consult” box even if the State Department never responded.
“If you’ve asked, you’ve consulted,” US Solicitor General D. John Sauer told the justices in April.
“Suppose that, you know, the question is made – the question is proffered, and then the response comes back: ‘wasn’t that baseball game tonight great,’” Justice Elena Kagan asked.
“Again, State can say something completely unresponsive,” Sauer responded. “If she sought input from State, she has consulted.”
The Justice Department made a similar argument in response to the request to dismiss the case. They argued that the newly revealed emails dealt with an earlier attempt to cancel the program. And, they said, the law only required DHS to ask State for its recommendations, not receive them.
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