The Supreme Court on Tuesday ordered the Biden administration to reinstate the Trump-era "Remain in Mexico" policy for asylum-seekers for the time being, saying further proceedings will likely show the government failed to give adequate reasons for ending the program as required by law.
Formally known as the Migrant Protection Protocols, the policy requires asylum-seekers to remain in Mexico while immigration authorities review their applications. A federal trial judge and the Fifth U.S. Circuit Court of Appeals said the Homeland Security Department failed to justify its decision to terminate the program. The liberal trio noted their dissent from Tuesday's order.
President Joe Biden's immigration policies have angered conservatives and liberals alike and face legal pressure from both sides. In the last two months, federal trial judges have struck down Biden's priority deportation practices and an Obama-era program that shields people who illegally entered the country as children from deportation. The ACLU is suing the administration for retaining COVID-related restrictions on asylum applications after a months-long closed-door negotiation failed to yield a settlement.
In its emergency appeal to the High Court, acting solicitor general Brian Fletcher warned the justices that an adverse decision would be perceived as political favoritism. During the Trump years, the Supreme Court stepped in repeatedly to allow the former president to implement his preferred immigration policies, as when it lifted a lower court order that blocked Pentagon funding for the border wall.
"In recent years, this Court has repeatedly stayed broad lower court injunctions against executive branch policies addressing matters of immigration, foreign policy, and migration management. It should do the same here," the filing reads.
The protocols are controversial because asylum-seekers struggle to retain adequate legal representation from the other side of the border, and conditions in Mexico can be dangerous for migrants. The Trump administration argued the alternative was effectively an open borders policy because backlogs in the immigration courts can defer decisions by years while applicants fade into the interior of the country.
Texas filed a lawsuit after Homeland Security Secretary Alejandro Mayorkas issued a memo rescinding the Migrant Protection Protocols on June 1. Lawyers for the state said that decision was harmful because many asylum seekers will be paroled into Texas, saddling the state with additional education and health care costs.
U.S. District Judge Matthew Kacsmaryk in Amarillo found that terminating the protocols contributed to the ongoing border surge. U.S. Border Patrol encounters with migrants and asylum-seekers have skyrocketed in recent months, and Kacsmaryk noted DHS itself anticipates this year will see the highest level of enforcement encounters on record. Nonetheless, Kacsmaryk said the Mayorkas memo didn't account for the Migrant Protection Protocols' deterrent effect on bad faith asylum-seekers. He also faulted DHS for failing to consult with Texas before issuing the memo, as required by a Trump-era agreement between the federal government and state authorities.
All told, the judge said Mayorkas did not adequately justify his decision to end the Migrant Protection Protocols as required by the Administrative Procedure Act. The act is a federal statute that sets out procedural requirements agencies have to satisfy when crafting new policies and regulations. Kacsmaryk issued an injunction that required the administration to retain the Migrant Protection Protocols for the time being on Aug. 13.
The Biden administration cast Kacsmaryk's injunction in dire terms in its appeal to the High Court. It claims the injunction requires the government to "abruptly reinstate a broad and controversial immigration enforcement program." Doing so, the filing adds, is "near impossible" and could precipitate a humanitarian and diplomatic crisis.
And because Mexico helped administer the program in the past, the government accused the trial judge of "effectively dictating the content of the United States' negotiations with foreign sovereigns."
In an unsigned opinion from a panel of three judges, the Fifth Circuit said the government's description of Kacsmaryk's order is disingenuous.
"This is a strawman. The district court did not order the government to restore MPP's infrastructure overnight," the Fifth Circuit's decision reads, adding that Kacsmaryk's order requires only "good faith" efforts on the government's part.
As to the Administrative Procedure Act, the Biden administration emphasized that the scope of judicial scrutiny under the law is narrow and that the bar they have to clear is a low one. It is only required, they said, to "articulate a satisfactory explanation for its action," not an exhaustive list of justifications.
The case is No. 21A21 Biden v. Texas.