Justices Side With Biden on Bid to Rescind Trump-Era ‘Remain in Mexico’ Policy

WASHINGTON — The Supreme Court ruled Thursday that the Biden administration’s decision to terminate the Trump-era Migrant Protection Protocol, also known as the Remain in Mexico policy, did not violate federal immigration law.

The majority in the 5-4 decision also held that an October memorandum issued by the Department of Homeland Security rescinding the policy and explaining why it was doing so was a “final agency action.”

The opinion, written by Chief Justice John Roberts, also returns the case to the lower courts in which it was heard for additional proceedings.

Justices Brett Kavanaugh, Steven Breyer, Sonia Sotomayor and Elena Kagan rounded out the majority joining Roberts in his decision.

The underlying history of the case is really the story of the tectonic shifts in philosophy that can occur when one political party and its administration cedes control of the executive branch of the government to another.

In December 2018, the Trump administration announced the Migrant Protection Protocols, a policy under which certain noncitizens arriving at the southwest border of the United States were returned to Mexico during their immigration proceedings.

In announcing the new policy, then-Homeland Security Secretary Kirstjen Nielsen said “for far too long, our immigration system has been exploited by smugglers, traffickers and those with no legal right to be in the United States.”

She went on to say the new rules were necessary to counter “misguided court decisions and outdated laws that have made it easier for illegal aliens to enter and remain in the U.S.,” and cited an unmanageable influx of children and families from Central America as the main reason for the change.

The move was intended to dissuade immigrants, mostly from Central America, from making the long and dangerous journey through Mexico to the southwestern United States border, she said.

Prior to the Trump administration’s change in policy, asylum seekers had generally been allowed to wait in the United States, often for years, for their cases to be processed.

Though the so-called “remain in Mexico” policy was subject to a number of legal challenges, and the 9th U.S. Circuit Court of Appeals temporarily blocked it, saying it was at odds with both federal law and international treaties and was causing “extreme and irreversible harm.”

Shortly thereafter, the Supreme Court reversed the 9th Circuit’s decision and allowed the administration to enforce it.

In June 2021, the Biden administration sought to end the policy, arguing it did not “adequately or sustainably enhance border management or reduce the already considerable burdens on border security personnel and resources.”

At the same time, it said, though the program did help speed some removal proceedings, the move to clear asylum backlogs and swiftly adjudicate legitimate asylum claims came with “significant drawbacks that are cause for concern.”

However, Texas and Missouri challenged the Biden administration’s decision, arguing that rescinding the policy violated federal immigration law and that the policy change violated the Administrative Procedure Act. 

A federal district court agreed with the challengers and ordered the Biden administration to implement the Migrant Protection Protocols or initiate new agency action in compliance with the APA. 

The 5th U.S. Circuit Court of Appeals declined to block the lower court’s ruling, as did the Supreme Court.

In October 2021, the Department of Homeland Security issued a new decision ending the policy supported by a lengthy memorandum explaining the department’s reasoning.

“I have concluded that there are inherent problems with the program that no amount of resources can sufficiently fix,” Alejandro N. Mayorkas, the homeland security secretary, wrote at the time.

The administration hoped the new memo addressed the issues raised by a federal judge in Texas, who ruled the previous August that the justification for ending the program offered by Mayorkas the previous June was “arbitrary and capricious.” 

But a district court again ordered the department to continue the policy, and the 5th Circuit upheld the order.

On appeal and during oral arguments before the Supreme Court, opponents of the Biden administration’s position argued, among other things, that the department’s review of the matter between June and October 2021 was too hasty and conducted without a mind open at least to the possibility of keeping the Trump-era policy in place.

But Roberts, writing for the majority, found nothing wrong with the timeline that transpired.

“It is black-letter law that an agency that takes superseding action on remand is entitled to reexamine the problem, recast its rationale and reach the same conclusion,” he wrote, adding later, “Nothing prevents an agency from undertaking new agency action while simultaneously appealing an adverse judgment against its original action. That is particularly so under the circumstances of this case. 

“The second condition of the district court’s injunction, which purported to bind DHS to implement MPP in perpetuity subject only to congressional funding choices outside its control, as a practical matter left the government no choice but to appeal. And the agency reasonably chose to accede to the District Court’s APA analysis of the June 1 memorandum and seek to ameliorate those concerns in the meantime,” he said.

“The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the court of appeals erred,” Roberts wrote. “Article II of the Constitution authorizes the executive to ‘engag[e] in direct diplomacy with foreign heads of state and their ministers.’ Accordingly, the court has taken care to avoid ‘the danger of unwarranted judicial interference in the conduct of foreign policy,’ and declined to ‘run interference in [the] delicate field of international relations’ without “the affirmative intention of the Congress clearly expressed.’

“That is no less true in the context of immigration law, where ‘[t]he dynamic nature of relations with other countries requires the executive branch to ensure that enforcement policies are consistent with this nation’s foreign policy.’”

It followed, by Roberts’ reasoning, that the court of appeals ruling against the Biden administration “imposed a significant burden upon the executive’s ability to conduct diplomatic relations with Mexico. MPP applies exclusively to non-Mexican nationals who have arrived at ports of entry that are located ‘in the United States’ … The executive therefore cannot unilaterally return these migrants to Mexico. In attempting to rescind MPP, the secretary emphasized that ‘[e]fforts to implement MPP have played a particularly outsized role in diplomatic engagements with Mexico, diverting attention from more productive efforts to fight transnational criminal and smuggling networks and address the root causes of migration.’”

Justice Amy Coney Barrett filed a dissenting opinion on which she was joined by Justices Clarence Thomas, Samuel Alito and Neil Gorsuch on all but the first sentence.

That sentence was” I agree with the Court’s analysis of the merits – but not with its decision to reach them.”

Among those decrying the high court’s ruling Thursday was Texas Attorney General Ken Paxton who said, “Today’s decision by the U.S. Supreme Court is an unfortunate one, and I believe it was wrongly decided. 

“Over a year ago, Texas and Missouri sued the Biden administration for illegally abandoning MPP. I won in district court and then won again on appeal,” Paxton continued. “The administration dragged its feet and refused to implement this effective program in good faith, allowing hundreds of thousands of illegals to pour over the border month after month. Today’s decision makes the border crisis worse. But it’s not the end. I’ll keep pressing forward and focus on securing the border and keeping our communities safe in the dozen other immigration suits I’m litigating in court.” 

Dan can be reached at [email protected] and @DanMcCue