August 26, 2021

Remain in Mexico Policy

“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

See past issues

From the Right

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.

From the Left

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.

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

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