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On Tuesday night, the Supreme Court issued one of the most sweeping orders in recent memory – and it did so in three unsigned sentences. By a vote of 6 to 3, the Conservative justices attacked the president’s authority to conduct foreign policy (a principle he had vehemently upheld throughout the Trump presidency) by forcing the Biden administration to revive the Donald Trump’s “stay in Mexico” policy, which demanded full asylum rights. – applicants arriving at the southern border – many fleeing violence in Central America – to await their US immigration hearings in Mexico. This 2019 policy, the result of lengthy negotiations between the Trump administration and the Mexican government, has been on hold for about 17 months. On August 13, however, a single federal judge issued a nationwide injunction ordering the government to immediately reinstate the long-dormant program. Late Tuesday, the Supreme Court blessed this unprecedented hostile takeover of executive immigration policy without bothering to explain how or why.
The implications of Tuesday’s decision are deeply worrying. Conservative judges have spent most of Trump’s years insisting that courts must defer to the president’s constitutional authority over foreign affairs. Now they have authorized a single Trump-appointed judge, Matthew J. Kacsmaryk, to force the government into sensitive diplomatic negotiations over border policy. Their decision even grants Kacsmaryk considerable authority to oversee these negotiations so he can make sure the Biden administration pushes Mexican officials enough to revive Trump’s agenda, which the administration doesn’t want to do. And they have apparently abandoned their skepticism of national injunctions like this – a position some took when it allowed them to undermine federal judicial control over Trump. In the process, the six Republican-appointed judges injected chaos, confusion and cruelty into U.S. border politics, plunging thousands of asylum seekers into legal limbo.
The Supreme Court has given Donald Trump special deference to immigration policy, deliberately turning a blind eye to the racist grounds for banning Muslims, under the theory that the executive has sole constitutional authority over immigration policy. But now that same tribunal, aided by a host of conservative jurists, will refuse such deference to Biden. For those who continue to insist that the Supreme Court transcends politics, these flip flops should prove otherwise.
Perhaps the most perverse aspect of the “Stay in Mexico” litigation – also known as the Migrant Protection Protocols, or MPP – is that the policy itself is illegal. Immigration and nationality law authorizes the government to return a small category of migrants to “contiguous territory” pending hearings. But, as a federal appeals court explained in 2020, the law does not not allow the government to return the vast majority of asylum seekers to Mexico to await hearings. This violates US treaty obligations as implemented in the INA, which prohibit the government from returning refugees to countries where they fear persecution.
Because the MPP is illegal, the Biden administration should have had no trouble repealing it. To make matters easier, Trump himself suspended the program in March 2020, replacing it with new COVID-related restrictions. It had only been in effect for about 14 months and had already been suspended for 17 months. Biden’s Homeland Security Department began repealing the program in January, and in June DHS Secretary Alejandro Mayorkas released a seven-page memo explaining why he was officially repealing the policy.
Texas and Missouri attorneys general quickly filed a lawsuit, arguing the cancellation was illegal. They took their case to Kacsmaryk, who delivered an astonishing decision on August 13, claiming that the MPP was not only authorized under the INA, but in fact. obligatory. Why? According to Kacsmaryk, asylum seekers awaiting a hearing must be detained or returned to Mexico; they cannot be released in the United States. If this were true, it would mean that the U.S. government has inadvertently violated federal law for almost a quarter of a century. But this is objectively false: Another provision in the law expressly authorizes the government to “parole” migrants in the United States at its own discretion. Kacsmaryk ignored this law, saying the Biden administration must either detain every migrant who arrives at the US-Mexico border or send them back to Mexico.
Kacsmaryk went beyond simply reinstating the program. He attributed the current “border surge” to Biden’s repeal of the MPP – a fundamentally political claim that is not supported by the record at all. He used this claim to give the states of Texas and Missouri membership, finding they were required to provide health care, education and even driver’s licenses to asylum seekers who would otherwise be detained in Mexico. Kacsmaryk rejected statements by US officials, sworn in, that restoring the MPP would require negotiations with the Mexican government, incorrectly claiming that the US could unilaterally force Mexico to detain thousands more migrants from the country. within its borders. (He can’t.) He gave the righteous government one week to restart the program.
We have no idea what even constitutes an emergency, or which parties have standing, or what the legal reasoning might be. to be.
A panel of 5e The United States Circuit Court of Appeals (which included two Trump candidates) refused to interfere with Kacsmaryk’s decision. The Biden administration, faced with the prospect of reinstating an illegal program that no longer exists and cannot be implemented unilaterally, has asked the Supreme Court for emergency help. The ruling gave Supreme Court conservatives an easy opportunity to demonstrate its lack of politicization: Throughout Trump’s presidency, isolated district courts have issued nationwide injunctions against his immigration policies, and practically every time, the Supreme Court has lifted these injunctions, often without explanation, leaving policies to take effect. In some of those rulings, conservative justices have insisted that courts accord broad deference to the president’s foreign policy decisions, a constitutional principle that dates back centuries.
This case gave the entire tribunal a chance to show consistency between Republican and Democratic presidents. Instead, they tore up the rules they laid down under Trump and allowed Kacsmaryk to dictate the administration’s foreign affairs. They didn’t even narrow the scope of his injunction, even though Justices Clarence Thomas and Neil Gorsuch denounced such injunctions nationally when they were issued against Trump.
If the six majority justices truly believed Mayorkas’ memo canceling the program was “arbitrary and capricious,” as they implied in their opaque order, they could have asked for a better reasoned decision. When Chief Justice John Roberts blocked Trump’s attempt to kill the DACA, he explained exactly how the president could legally revoke the repeal. But this time around, the court gave no guidance on how the Biden administration may correct its mistake – it didn’t even identify the alleged mistake. The jackpot is that the court alluded to the language of the 5e Circuit ruling concluding that administration will not violate court order if it tries in “good faith” to restore Trump-era policies. What constitutes “good faith” when dealing with a defunct program and a third government? Nobody knows. Thus, the threat of sanctions now hangs over government officials who must engage in delicate diplomatic negotiations under the direction of a judge who does not understand immigration law.
Immigration lawyers have long opposed the Stay in Mexico on humanitarian grounds policy. When the policy was first enacted in 2019, asylum seekers were held in horrific conditions in camps plagued by violence, rape, torture and disease as they awaited their US immigration hearings. Human Rights First has identified more than 800 violent attacks on asylum. – applicants stranded in Mexico under the MPP regime, including kidnappings, rapes and murders. It is no coincidence that one of Biden’s first actions as president was to formally suspend him, although his broader record on border control remains mixed.
As we have suggested in the recent past, the problem with late night emergency orders written as haikus on post-it notes stuck to the front doors of the Supreme Court is not just that parties must scramble, unguided, to discern what it is the court that wants them to do. In this case, perhaps tens of thousands of desperate asylum seekers and their families have absolutely no idea what the current law is and why. We have no idea what even constitutes an emergency, or which parties have standing, or what the legal reasoning might be.
Not too long ago, the High Court used its shadow case to spank what it saw as fugitive district court judges arrogating to themselves the power to set immigration policy in violation of Trump’s orders. Now, the same shadow case is being used to turn federal immigration powers over to fugitive district court judges, with no rules or principles stated beyond that Biden should just lose, because they say so.
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