A Supreme Court decision this month will place 350,000 Haitians and 6,100 Syrians at immediate risk of deportation, while establishing a legal standard that civil rights advocates warn makes it nearly impossible to prove racial discrimination in government policy—even when officials make overtly racist statements.
The ruling in Mullin v. Doe has implications that reach far beyond immigration law. Justice Elena Kagan wrote in dissent that "the evidence is there, plain to see, in the President's statements, which the majority (and for that matter, his own lawyers) cannot even bear to repeat."
The Evidence the Court Dismissed
The Trump administration presented no secret of its racial motivations. Donald Trump said "If you import The Third World, you become The Third World," that immigrants had "bad genes," that they were genetically predisposed to crime, and that they were "poisoning the blood of our country" and coming "from Africa, from Asia, all over the world." Trump also said that allowing in Haitian immigrants was a "death wish for our country," that "they all have AIDS," accused them of eating household pets, referred to Haiti as a "filthy, dirty, disgusting" place and a "shithole" country, and complained that America does not take in enough people from Norway and Sweden.
The administration implemented what it called a whites-only refugee policy that accepts solely South Africans of European descent. Much of this evidence, including statements by Kristi Noem, the former head of the Department of Homeland Security, was presented to the Supreme Court.
An Impossible Legal Standard
Justice Samuel Alito wrote for the majority that "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, "One may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race."
Guy-Uriel Charles, a professor at Harvard Law, said Justice Samuel Alito's majority opinion "basically sets up an impossible burden for plaintiffs because race is rarely going to be the sole justification" for a policy. Aderson Francois, a law professor at Georgetown University, said, "As long as there is a plausible basis—any plausible articulable basis—for the government's action, then the Court will look to that basis as sufficient," even in the face of evidence that government actors were motivated by animus.
Melissa Murray, a law professor at NYU, said, "This Court sees race when it wants to, and blinds itself to racism in most other cases."
A Pattern of Reversing Civil Rights Protections
The Roberts Court has been turning anti-discrimination law upside down for years. In May's Louisiana v. Callais, one month ago, it determined that not allowing Louisiana's government to dilute Black votes was racist. Alito insisted that forcing the state to draw a second majority-Black congressional district would be an "unconstitutional racial gerrymander" because Republicans were entitled to discriminate against Black voters if they argued that their purpose was partisan instead of racist. The Court reaffirmed that position in a subsequent case dealing with Alabama after a lower court had found ample evidence of deliberate racial discrimination, as opposed to the discriminatory effect of the Louisiana map.
Alito had in a 2009 case on affirmative action, Ricci v. DeStefano, 17 years ago, dismissed as "pretextual" New Haven's reasoning for throwing out test results in which white firefighters performed better than their Black colleagues, and when a Virginia school implemented a race-neutral, class-based affirmative-action policy, Alito insisted that the policy was by definition racist because it changed the demographic composition of the student body.
Shortly after the Mullin v. Doe decision, the White House adviser Stephen Miller said, "We can finally remove these Haitian illegal migrants."
New ICE Leadership Amid Mass Deportation Push
President Donald Trump on Saturday said he is nominating Lance Schroyer, a former Oklahoma state trooper, as the next director of Immigration and Customs and Enforcement. Trump said on his Truth Social platform that Schroyer is a former U.S. Marine and a "PATRIOT with real operational experience," and called him a "proven leader with DECADES of experience locking up the worst of the worst."
Schroyer hails from the same home state as the new Department of Homeland Security Secretary Markwayne Mullin, a former congressman who started in his role four months ago in March. Earlier this month Mullin brought Schroyer onstage at a National Sheriffs' Association event, calling him a "good friend of mine" and noting DHS had recently hired him. On Saturday, Mullin praised Schroyer in a statement highlighting the former trooper's 29-year career and his work with federal and state partners on a U.S. immigration enforcement program. Mullin said, "President Trump made a great pick, and I'm confident Lance's strong leadership and firsthand experience will empower the men and women of ICE to deport criminal illegal aliens, secure the homeland, and protect the American people."
Claire Trickler-McNulty, a former senior ICE official, said prior confirmed ICE directors have often been attorneys, though some state and local law enforcement officials have also been nominated, and said Schroyer's background in Oklahoma suggested Markwayne Mullin likely had influence over the pick. John Torres, another senior ICE official, said Schroyer faces an uphill climb toward Senate confirmation but that his experience at the state and local level instead of the federal level might help.
An Agency Under Strain
Schroyer's nomination came after former ICE director Todd Lyons resigned less than one month ago at the end of May. David Venturella, a former executive at a private prison operator, has been serving as the acting head of the agency, and Venturella is expected to stay on as acting director until Schroyer is Senate confirmed, according to a DHS official speaking on condition of anonymity. ICE has not had a Senate-confirmed director since the Obama administration.
If confirmed, Schroyer will lead ICE at a time when the public mood has soured on Trump's immigration crackdown, which sent surges of federal immigration officers into American cities to round up immigrants. Those raids sent tensions soaring and prompted clashes between protesters and law enforcement, leading to the fatal shootings of two U.S. citizens in Minneapolis earlier this year.
Trump returned to the White House on a promise of mass deportations, and ICE has been a central executor of that vision. The agency is undergoing massive growth from a one-time injection of $75 billion last year, which has allowed for the hiring of 12,000 officers and increased detention capacity.
Mullin has promised to keep his department out of the headlines and has indicated a softer tone on immigration, although he is expected to align with the president's priorities on mass deportations. ICE has not had a Senate-confirmed director since the Obama administration, a result of polarizing politics around the agency and immigration policy.
Why This Matters:
The Supreme Court's decision in Mullin v. Doe places hundreds of thousands of vulnerable people at risk while establishing a legal precedent that could make it virtually impossible to challenge racially discriminatory government policies in court. When explicit racist statements by the President and cabinet officials are deemed insufficient evidence of racial animus, the protections guaranteed by civil rights law become hollow. The Court's reasoning creates a framework where officials can discriminate with impunity as long as they can articulate any alternative justification, no matter how implausible. Meanwhile, the expansion of ICE with $75 billion in funding and 12,000 new officers, combined with leadership drawn from state law enforcement and private prison industry backgrounds, raises serious questions about accountability and oversight as the agency pursues mass deportations that have already resulted in the deaths of two U.S. citizens. The absence of Senate-confirmed leadership since the Obama administration reflects the breakdown of democratic accountability over immigration enforcement at precisely the moment when such oversight is most urgently needed.