A document that a trustee can alter at will loses its function as a trust and resembles a mere suggestion. This notion gained attention recently when U.S. District Judge Allison Burroughs issued a stay preventing the Trump administration from ending Temporary Protected Status (TPS) for more than 1,000 Somali nationals. This occurred despite a Supreme Court ruling in Mullin v. Doe, which stated that district courts cannot overturn these terminations unless constitutional grounds are present.

Homeland Security labeled the decision as defiance and delay. Congressman Andy Ogles regarded it as potential grounds for impeachment. However, the underlying issue remains the lack of penalty for ignoring legislative intent. Congress has not solidified statutes regarding this matter, thus leaving room for interpretation.

A stay is not a final decision, but rather a temporary interruption until a higher authority, like the Supreme Court in the case of Mullin, intervenes. Although Mullin addressed different countries, its ruling emphasized that Congress restricted judicial review for TPS terminations without statutory justification. However, it allowed room for constitutional arguments, acknowledging due process under federal law.

Somali plaintiffs utilized this constitutional opening after the First Circuit Court applied the Mullin precedent to cases involving Ethiopia and South Sudan. They reframed their argument to focus on equal protection and due process rather than statutory issues, leading Judge Burroughs to extend the stay while assessing these claims.

This practice highlights a broader issue, as district judges have been freezing federal policy more extensively than necessary. The Supreme Court has attempted to limit this scope through rulings like Trump v. CASA and Mullin, although constitutional claims remain permissible.

The TPS program is vital as it prevents returning individuals to unsafe environments. Conflicting advisories from the State Department and Homeland Security on Somalia showcase the need for judicial review but reveal flaws in the current statutory system.

To address this, Congress should:

• Revise the TPS statute to require any constitutional challenges to be filed directly with circuit courts of appeal, mirroring the REAL ID Act process.
• Impose a strict 60-day deadline for circuit courts to decide on emergency stays, streamlining the debate.
• Engage in effective oversight by leveraging tools such as formal complaints and hearings, rather than pursuing impeachment, which is impractical with the Senate’s current composition.

Adjusting the statute and enhancing oversight could prevent repetitive stays and ensure judicial accountability. Without these changes, the cycle is likely to persist, with further delays expected by winter.

Jay Rogers is a financial professional with over three decades of experience in private equity, private credit, hedge funds, and wealth management.

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