Court won’t block order requiring reinstatement of “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 court was divided on the decision to deny relief, with the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicating that they would have granted the government’s request and put the district court’s order on hold.

The decision means that the Biden administration must resume enforcing the policy “in good faith” while litigation continues in the lower courts.

Tuesday night’s order was the second time that the justices have acted on an emergency basis with respect to the “remain in Mexico” policy, formally known as the Migrant Protection Protocols, which the Trump administration announced in 2018. In March 2020, the court allowed the Trump administration to begin enforcing the policy after a federal district judge in California blocked it. The Supreme Court later agreed to review a ruling by the U.S. Court of Appeals for the 9th Circuit holding that the policy was likely inconsistent with both federal immigration law and international law, but the justices dismissed the case earlier this summer after the Biden administration ended the policy. Critics of the policy say that it forced people seeking asylum to reside in dangerous and unsanitary camps in Mexican border towns.

After the Biden administration ended the policy, Texas and Missouri went to federal court in Texas to challenge that decision. The states argue that the decision to terminate the policy violated federal immigration law and the federal law governing the procedures that federal agencies must follow. They also contend that, without the policy, large numbers of migrants can enter the United States based on dubious asylum claims, imposing costs on the states.

A federal district judge agreed with the states and ordered the Biden administration to reinstate the policy by Aug. 21. The U.S. Court of Appeals for the 5th Circuit declined to put the ruling on hold to give the government time to appeal.

The Biden administration went to the Supreme Court on Friday, asking the justices to step in. Acting Solicitor General Brian Fletcher defended the decision to end the policy as one reached after careful consideration, and he warned that the district court’s order requiring the government to reinstate the policy immediately would both meddle in U.S.-Mexico relations and “threaten chaos at the border.”

Justice Samuel Alito, who handles emergency requests from Texas, briefly paused the district court’s order to allow the justices to consider the request. Alito put the order on hold until 11:59 p.m. on Tuesday and ordered the states to respond by 5 p.m. Tuesday afternoon – signaling that the court would act quickly.

In their filing on Tuesday afternoon, the states downplayed the Biden administration’s complaint that the district court’s order interferes with U.S. foreign policy. The government had expressed only “vague concerns” at trial, the states suggested, and in any event “virtually any significant immigration policy may have collateral consequences for foreign relations.” The states rejected the administration’s argument that requiring it to reinstate the policy would lead to “chaos at the border” as a “strawman”: “[T]he humanitarian emergency at the border is occurring now,” the states wrote, and has only gotten worse since the Biden administration suspended the policy. Indeed, the states noted, news reports have indicated that the Biden administration itself has “privately discussed” reviving the policy because of the problems at the border.  

The states also told the justices that the June 1 memorandum by the Department of Homeland Security that formally ended the policy was neither reasonable nor reasonably explained, as federal law requires. Among other things, the states stressed, the DHS memorandum did not consider the benefits of the policy or the extent to which the states had relied on it.

In a brief unsigned order issued shortly before 8 p.m. on Tuesday night, the court explained that the Biden administration was not likely to succeed – one of the criteria for obtaining this kind of request for emergency relief – in showing that its decision to end the policy was not “arbitrary and capricious” – that is, reasonable and reasonably explained. The order cited the court’s 2020 ruling in Department of Homeland Security v. Regents of the University of California, which rejected the Trump administration’s efforts to terminate the Deferred Action for Childhood Arrivals program, an Obama-era policy that protected people who were brought as children to the U.S. without authorization. In Regents, the court held that the Trump administration had not properly explained its decision to end DACA.

In Tuesday night’s order, the court added that its decision not to put the district court’s order on hold “should not be read as affecting the construction of that” order by the 5th Circuit, which had emphasized that the district court “did not order the Government to restore MPP’s infrastructure overnight,” but instead only required it to enforce and implement the policy “in good faith.”

The court’s three liberal justices made clear that they would have granted the government’s request, though none of them wrote a formal dissent. There is no way to know if any of their colleagues also voted to grant the government relief; if any justice did, he or she did not note that vote publicly. (read more)