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Dems’ DACA Victory Led To Biden’s ‘Remain In Mexico’ Defeat

Supreme Court on Tuesday upheld the Trump-era immigration policy

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• August 25, 2021 1:10 pm

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The 2020 Supreme Court ruling that barred the Trump administration from terminating the Deferred Action for Childhood Arrivals program formed the basis of the Court's Tuesday order requiring President Joe Biden to retain the "Remain in Mexico" policy.

Formally known as the Migrant Protection Protocols, the policy requires migrants seeking asylum to wait in Mexico while their applications are reviewed by U.S. immigration authorities. Homeland Security Secretary Alejandro Mayorkas tried to terminate the protocols by memo on June 1, drawing a lawsuit from two red states that objected to the change.

In the DACA case, Department of Homeland Security v. Regents of the University of California, the High Court said a DHS memo purporting to terminate DACA was invalid because it failed to consider feasible alternatives and the extent to which recipients depended on it. The Court's Tuesday night order said the Mayorkas memo is likely deficient for the same reasons, citing the Regents ruling.

The order was a bitter reversal for liberals and immigration advocates who were elated by their victory in the DACA case. And it places the Biden administration in the same position as its predecessor: stuck by judicial decree with an immigration policy it fundamentally opposes.

Tuesday night's decision did not include a detailed legal analysis, as is typical of such orders. But it did cite specific sections of the Regents opinion that two lower federal courts invoked to invalidate the Mayorkas memo, a sign a majority of the Court agreed with those rulings.

Writing for a five-member majority in Regents, Chief Justice John Roberts homed in on two omissions in the Trump administration's DACA termination memo. The Biden administration apparently repeated both errors in attempting to rescind the protocols.

First, the Regents Court said the Trump administration should have addressed possible modifications to DACA short of termination. U.S. District Judge Matthew Kacsmaryk said the Mayorkas memo similarly failed to outline alternatives to cancellation. The memo indicates that the secretary considered modifying the policy but concluded viable fixes would require "a total redesign." Kacsmaryk said Mayorkas should have been more specific.

"The entirety of the secretary's reasoning in not modifying MPP is contained in a single sentence," the trial judge's decision reads. "The secretary does not identify a single example of what a modified MPP would look like or what kind of investment would be needed to modify or scale back MPP. Courts do not defer to the agency's conclusory or unsupported suppositions."

Second, Regents said DHS should have addressed the degree to which recipients depended on the program, called a reliance interest. The chief justice noted DACA recipients relied on the program to enroll in school, purchase homes, and start families. The Trump administration's failure to account for that fact was, the Court said, a fatal error.

Likewise, the Fifth U.S. Circuit Court of Appeals said Mayorkas failed to address reliance interests generated by the protocols, as Regents required.

In particular, the Fifth Circuit said Mayorkas should have considered the fiscal harms to states on the southern border. Those states, the court said, will have to shoulder additional education and health care costs when asylum-seekers are paroled into their communities. Indeed, Regents specifically referenced fiscal harm to state and municipal governments, since DACA recipients account for about $1.25 billion in tax revenue, according to some sources.

"DHS failed to address whether there was legitimate reliance on MPP," the Fifth Circuit's unsigned decision reads. "In its seven-page June 1 memorandum, DHS does not directly mention any reliance interests, especially those of the states."

Failing all that, the Justice Department said the Court should give the administration a second chance to produce a more rigorous explanation. The Trump administration attempted to do the same thing in Regents, but the majority refused to recognize its supplemental explanations.

"The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted," Roberts wrote.

The case is No. 21A21 Biden v. Texas.