Another 9th Cir. Case on Temporary Protective Status For Venezuelans Might Finally Draw The Supreme Court Into The Fight.
The author of the panel opinion writes a statement on the denial of en banc review citing SCOTUS's Tariffs opinion as a reason the panel decision upholding the continuing of TPS is correct.
I’m putting this right at the top, even though in the context of this argument I put it farther down after I provide the background for what happened earlier this week.
The author of the Ninth Circuit panel decision sustaining a San Francisco Judge’s decision to keep TPS for Venezuela in place cited the Supreme Court’s decision in the Tariffs case — Learning Resources v. Trump — as supporting the panel’s decision. But to do so, Judge Kim McClane Warlaw did great “violence” to the the language and reasoning of the Supreme Court in that case — maybe to the degree that it will draw the attention of the Justices.
Here is the relevant passage from Chief Justice Roberts’ opinion:
Absent from this lengthy list of powers is any mention of tariffs or duties. That omission is notable in light of the significant but specific powers Congress did go to the trouble of naming. It stands to reason that had Congress intended to convey the distinct and extraordinary power to impose tariffs, it would have done so expressly — as it consistently has in other tariff statutes.
Here is what Judge Warlaw wrote in taking this language and “modifying” it to suit her purposes this week:
As the Supreme Court recently explained, “[t]he omission” of a particular power in a statute “is notable in light of the significant but specific powers Congress [does] go to the trouble of naming.” Learning Resources v. Trump…. “It stands to reason that had Congress intended to convey the distinct and extraordinary power to” vacate a prior lawful designation or extension, “it would have done so expressly.”
According to Judge Warlaw the authority vested in Congress in the Constitution to impose tariffs is functionally no different than the “extraordinary power” of the DHS Secretary to “vacate” actions of her predecessor in office. She broke up the Supreme Court’s quote, removed “to impose tarrifs” and put in its place “vacate a prior lawful designation or extension” as if they were interchangeable as a constitutional and legal matter.
That is an example of an abuse of judicial discretion in the fashioning of a legal argument.
Before getting further into the substance of the statement written by Judge Kim Wardlaw on March 11, let me provide a bit of historical background so you know where this case stands and at what point in the case Judge McLane wrote what she did and why.
This is the case handled by long-time ACLU attorney, and now District Judge Edwin Chen in the Northern District of California. Since March 2025 Judge Chen has repeatedly attempted to block the termination of TPS for Venezuelans in the U.S. illegally.
It is important to understand that DHS Sec. Noem issued two different orders immediately after she was confirmed with respect to Venezuela’s TPS. First she “vacated” designations and extensions of TPS that were ordered by Biden DHS Sec. Alejandro Mayorkas on January 17, 2025, three days before leaving office. Mayorkas claimed to extend TPS protection for Venezuela that wasn’t set to end for several more months. Doing so meant that TPS would extend as long as 20 months into the Trump Administration.
Secretary Noem also “terminated” TPS pursuant to the statutory requirements so that it would end when the current TPS term concluded.
Judge Chen twice found — once as support for a Preliminary Injunction and later as part of his Final Order — that Congress did not give Sec. Noem the power to “vacate” prior orders in the text of the TPS statute. He also found defects in her decision to terminate existing TPS protection when it next ended.
After being denied in the Ninth Circuit, the government successfully sought Stays of Judge Chen’s Orders from the Supreme Court. Two Stays were granted in short docket entries without any Justice writing an opinion explaining the Court’s reasoning.
For a longer explanation of Judge Chen’s efforts, you can read three previous articles I have written about his ridiculous rulings and the Ninth Circuit’s handling of them.
