I have spent three decades pricing risk for a living. Before I sign off on any credit strategy, I ask one question: what happens when the other side stops cooperating? A memo Sen. Eric Schmitt (R-MO) released this week shows the outgoing Biden White House asking the same question about the American voter, then building a plan around that answer.
The document, dated the final weeks of Biden's presidency, laid out a strategy to expand Temporary Protected Status (TPS) to cover more than 3.1 million people from Guatemala, Ecuador, Nicaragua, Venezuela, and other countries just before President Trump took office. Its authors put the breakdown in writing, according to Fox News: 1.5 million Guatemalans, 600,000 Ecuadorians, 464,000 Nicaraguans, 455,000 Venezuelans, plus smaller cohorts from Ukraine, Sudan, and Afghanistan. Schmitt called it what it is, mass amnesty by decree, a scheme built to survive an election its authors knew they had lost.
TPS itself is not the villain here. Congress created it in 1990 to give people fleeing war zones and natural disasters a temporary lifeline, not a permanent visa program, and USCIS's own program guidance still describes it that way. The word “temporary” sits right in the name. But the memo treats that word as decorative. Its authors knew a designation, once made, is almost impossible to unwind. They cited the litigation record directly: courts blocked Trump's first-term attempts to end TPS for Sudan, Nicaragua, Haiti, El Salvador, Nepal, and Honduras because the Department of Homeland Security had not built a sturdy enough factual record to survive review under the Administrative Procedure Act, a pattern the American Immigration Council has documented in its own case-by-case tracking. So, the parting gift was not just protection for migrants. It was a lawsuit factory, pre-loaded and ready to fire the moment Trump tried to reverse course, a time bomb built to detonate on the next administration, long after its authors were gone.
This is where my other career, the one where lawyers pay me to explain fiduciary duty to a jury, becomes relevant. A fiduciary who structures a transaction specifically to bind his successor's hands, after he already knows he is being replaced, does not survive a deposition. I have seen executives who tried that move on the departing board. It never ends well for them. Yet in Washington, we call this policy planning instead of what any judge in a breach-of-duty case would call it: self-dealing dressed up as governance. In plain terms, it was sabotage.
The Administrative Procedure Act is the mechanism that makes this possible. It exists to keep agencies honest, forcing them to build a record and explain their reasoning before they act, and it gives courts the power to strike down agency decisions that are arbitrary or capricious. That is a good thing when it stops an agency from making policy up on the fly. But Biden's team turned the APA's own safeguards into a weapon. They understood that once a TPS designation exists, a court reviewing any attempt to revoke it will demand the same rigorous paper trail the law requires to create one. They spent their remaining days building the record on the way in, knowing Trump's team would need years to build an equally strong record on the way out.
Numbers matter in my line of work. Pew Research counted nearly 1.2 million noncitizens receiving or eligible for TPS as of last year, more than under any prior administration. The memo Schmitt released proposed adding another 3 million-plus on top of that. The Congressional Budget Office puts a taxpayer price tag on that broader wave of newly protected immigrants: $23 billion added to federal mandatory spending by 2034 alone, part of $0.3 trillion in added outlays and debt-interest costs over the decade. Add another 3.1 million people to the rolls and the bill doesn’t shrink. One week after it circulated, Biden extended TPS for nearly a million people anyway, without waiting for the full expansion. The intent was blatant and destructive to our sovereignty. It was already in motion before anyone outside the West Wing had seen the paperwork.
I coached high school track and field for years, teaching teenagers that the barriers on the track are fixed. You don’t get to move them mid-race because you are losing. The Biden administration's approach to TPS did exactly that: moved the barriers in the final lap, then handed the next runner a memo explaining why the new barriers were legally untouchable. That is not governance. It is a foul nobody called, because the race was already over by the time anyone noticed the barriers had shifted.
Congress built TPS with a discretionary switch and almost no sunset discipline, and administrations of both parties have leaned on that gap for years. The fix is not complicated. Cap designations at a defined term with automatic expiration absent new congressional action. Require the same notice-and-comment rigor for extensions that courts already demand for terminations. And close the loophole that lets an outgoing administration date a memo a year earlier than it was actually written, then act on it anyway. None of that ends TPS. It forces Washington to run the program the way Congress wrote it: as an emergency valve, not a permanent immigration channel operated by press release.
Voters elected a president who promised to enforce the law as written. A parting bureaucracy tried to make that promise legally impossible to keep before he took the oath. That is worth remembering the next time someone tells you elections have consequences. In this case, the outgoing administration made sure the consequences would take years, and several federal dockets, to arrive.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
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