Bull Ensign @BullEnsign - Twitter Profile

about 16 hours ago

From an originalist perspective grounded in the text of the statute, the original public meaning of its terms, the structural limits of Article III, and the separation of powers, the continuing administrative stay issued by Judge Burroughs is difficult to sustain. The governing provision is unambiguous. Section 1254a(b)(5)(A) of Title 8 states: “There is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” Congress used broad language—“any determination” and “with respect to”—that, under ordinary meaning at the time of enactment and today, encompasses both the final decision to terminate TPS and the subsidiary steps, procedures, and assessments leading to it. In Mullin v. Doe (June 25, 2026), this Court applied that plain text. The opinion held that the bar reaches all non-constitutional claims challenging a TPS termination. Courts may not second-guess the Secretary’s judgment about country conditions, the process of consultation, or the decision that the statutory criteria for continued designation are no longer met. Interim relief that postpones or nullifies the termination on such grounds is therefore unavailable. The opinion further made clear that even an equal-protection claim faces a high threshold for preliminary relief when a race-neutral explanation—here, a consistent policy of ending TPS designations—exists. Judge Burroughs’ July 31, 2026 electronic order reimposes an administrative stay after plaintiffs filed an amended complaint and emergency motion. It declares the termination “null, void, and of no legal effect” while the court considers “new issues.” The order relies on the need for briefing time and on similar actions by other district judges. That rationale does not overcome the statute. An administrative stay that has the practical effect of reviewing and suspending a determination Congress has placed beyond judicial cognizance is not a neutral procedural device. It is judicial review by another name. Original understanding of the judicial power does not authorize courts to preserve a “status quo” that Congress has expressly authorized the Executive to alter, particularly in the domain of immigration and foreign-country designations—areas long recognized as committed to the political branches. Congress could have permitted APA review, limited stays under 5 U.S.C. § 705, or broader equitable authority. It chose the opposite course. Courts are not free to dilute that choice by sequential amendments, novel framing of claims, or extended “briefing” periods that keep the termination inoperative. Where non-constitutional claims are barred and any remaining constitutional claim has not been shown likely to succeed on the merits under the demanding standards applicable to equal-protection challenges in this context, interim relief that nullifies the Executive’s action exceeds the judicial role. The proper course consistent with the text, with Mullin, and with the original design of separated powers is to dissolve the stay promptly, allow the termination to take effect, and proceed only on any genuinely viable constitutional claim that survives careful scrutiny—without using the equitable power to rewrite the statute’s clear allocation of authority.

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Bull Ensign

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