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“The Supreme Court on Tuesday night rejected the Biden administration’s plea for a reprieve from a district-court order requiring it to reinstate a Trump-era program known as the ‘remain in Mexico’ policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court… The decision means that the Biden administration must resume enforcing the policy ‘in good faith’ while litigation continues in the lower courts.” SCOTUSblog
The ‘Remain in Mexico’ policy is officially known as the Migrant Protection Protocols (MPP). DHS
The right is generally supportive of the decision, arguing that it is consistent with the Supreme Court’s decision last year blocking the rescission of DACA.
“The Supreme Court has allowed Congress to delegate its lawmaking powers to the executive branch or to independent agencies… That delegated power, however, must be exercised according to the Administrative Procedure Act (APA) of 1946. That act sought to curtail the power of entities with delegated power to promulgate new rules without substantial public input or transparent processes. Thus, rulemaking normally requires extensive open hearings with opportunities for public comment and testimony…
“The court made this crystal clear when it cited last year’s decision invalidating the Trump administration’s attempt to rescind the Obama-era Deferred Action for Childhood Arrivals policy. By a 5-to-4 majority, the court held in Department of Homeland Security v. Regents of the University of California that the Trump administration’s rule was arbitrary and capricious because it failed to consider a host of possible ramifications of that repeal and to properly distinguish all the matters within the agency’s discretion and explain its decision in light of facts…
“The Biden administration rescinded the Remain in Mexico policy on Jan. 20, Biden’s Inauguration Day. There was no attempt to request public input or hold any public hearings. The memorandum rescinding the policy merely makes assertions about the Department of Homeland Security’s capabilities and makes no efforts to provide supporting facts or show any consideration of the effects of its rescission.”
Henry Olsen, Washington Post
“Migrants keep coming because they hear that if they get into the U.S. they have a decent chance of staying. More than 210,000 migrants were apprehended last month, most of whom seek to remain in the country by claiming asylum. Arrivals have increased in each month of the Biden Presidency and now exceed levels not seen since 2000…
“Remain in Mexico worked as a deterrent. A Homeland Security review in 2019 found that enforcement against Central American migrants declined 80% as the policy took effect from May through September. More than 70,000 asylum seekers were returned to Mexico. Remain in Mexico is also more humane than the lawless chaos that now prevails. The Mexican government’s agreement to house a share of migrants reduced the risks of crossing illegally and relieved the migrant burden on U.S. border states.”
Editorial Board, Wall Street Journal
“Biden’s Department of Homeland Security Secretary Alejandro Mayorkas [has] been caught on tape admitting to Customs and Border Protection agents that the situation on the border is ‘unsustainable.’… The Biden administration immediately appealed Kacsmaryk's decision, but as Vice reported last week, there are also ‘senior officials in the Biden administration’ who acknowledge that MPP worked and are discussing how to bring back a ‘gentler’ version of the program…
“Thanks to the Supreme Court, Biden, or more likely Mayorkas, can say he has no choice but to close the ‘catch and release’ loophole and bring back the ‘Remain in Mexico’ program. DHS even issued a statement last night saying that while they will continue to appeal the case, they will also ‘comply with the order in good faith.’ There would be a lot of details to work out, including whether Mexico will continue to cooperate with the program (the appeals court did note, however, that Mexico never retracted its consent to the program). But this could be the political escape hatch that Biden needs to solve the border crisis he created.”
Conn Carroll, Washington Examiner
The left is critical of the decision, arguing that the Supreme Court should allow the president discretion on foreign policy.
The left is critical of the decision, arguing that the Supreme Court should allow the president discretion on foreign policy.
"The conservative justices were remarkably solicitous of the Trump administration’s unprecedented and frequent pleas for emergency orders, especially in the immigration context…
“Of 28 emergency stays that the court issued in response to Trump administration requests, 11 involved lifting district court injunctions against Trump administration immigration policies. Indeed, when immigration rights groups challenged the legality of the Remain in Mexico policy and a different district court judge blocked it from taking effect, the Trump administration sought a stay from the Supreme Court, which was happy to oblige. For the Biden administration, no such luck…
“Ordering the Biden administration to move to immediately reinstate a program that hasn’t been in operation since March 2020 (the previous administration suspended it because of the pandemic), that it doesn’t believe is good policy, that requires coordination with the Mexican government — none of this needs to be done while the litigation is proceeding and the outcome uncertain.”
Ruth Marcus, Washington Post
“Remain in Mexico was implemented in early 2019, and effectively suspended in March 2020, because the government imposed stricter, temporary border restrictions in order to reduce the spread of Covid-19. Thus, Kacsmaryk’s opinion rests on the improbable claim that a federal law enacted in 1996 requires the government to implement a policy that was only in effect for 14 months, and that wasn’t implemented until nearly a quarter-century after the 1996 law took effect…
“[Moreover] As the Justice Department explains in its brief asking the Court to stay Kacsmaryk’s decision, ‘implementing MPP required extensive coordination with and assistance from Mexico, which took a variety of steps to assist the United States and the migrants who were returned.’ Reimplementing it would also require such coordination with Mexican officials, who may not be inclined to be charitable if US negotiators abruptly break their own promise to end the Remain in Mexico policy…
“Historically, and over the course of many decisions handed down for many decades, the Supreme Court has warned against ‘the danger of unwarranted judicial interference in the conduct of foreign policy.’ Foreign relations involve sensitive negotiations, where US diplomats need to know that their country will keep their promises. If a judge can order the United States to make significant changes to its foreign policy… that will disrupt our relations with foreign governments and diminish our credibility abroad.”
Ian Millhiser, Vox
“The implications of Tuesday’s decision are profoundly disturbing. The conservative justices spent the bulk of the Trump years insisting that courts must defer to the president’s constitutional authority over foreign affairs…
“Now they have allowed a lone Trump-appointed judge, Matthew J. Kacsmaryk, to force the government into sensitive diplomatic negotiations over border policy. Their decision even grants Kacsmaryk sweeping authority to oversee these negotiations so he can ensure that the Biden administration is pushing Mexican officials hard enough to revive Trump’s program…
“The booby prize is that the court alluded to language from the 5th Circuit decision finding that the administration will not violate the court order if it tries in ‘good faith’ to reinstate the Trump-era policy. What constitutes ‘good faith’ when you’re dealing with a defunct program and a third-party government? No one knows.”
Dahlia Lithwick and Mark Joseph Stern, Slate
A libertarian's take
“While it is good to see the Court aspire to consistency, I think the resulting legal rule is problematic… If deciding on a clean slate, I would have upheld both the Trump Administration's DACA rescission and the Biden Administration's MPP rescission. Elections have consequences, especially in areas of law like immigration, where Congress has left the Executive Branch with ample discretion and which implicate foreign policy. But last night's order was not issued on a clean slate…
“If it was not enough for the Trump Administration to conclude DACA was unlawful to rescind it, because it had alternatives and potential reliance interests to consider… [it follows that] the Biden Administration should [not] be able to reverse another immigration policy without an equally fulsome examination of alternatives and alleged reliance. All of this underscores that if we are to have a rational and humane immigration policy, Congress has to step up to the plate. We won't likely get there through Executive Orders or the courts.”
Jonathan H. Adler, Volokh Conspiracy
