The Supreme Court temporarily saves Trump’s ‘Remain in Mexico’ policy

One of Trump’s triumphs was the “Remain in Mexico” policy, which required asylum seekers to remain in Mexico while the U.S. considers their petitions. On his first day in office, Biden suspended that rule (and DHS Secretary Alejandro Mayorkas later terminated it). Thanks to this and other violations of U.S. Immigration law, our southern border was thrown wide open.

The matter ended up before a federal district court in Texas, which issued an injunction requiring the rule to be reinstated by August 21. On Tuesday, the Supreme Court rejected the Biden administration’s request to stay that ruling. The big question now is whether the Biden administration will abide by the Supreme Court’s ruling.

I must admit that I didn’t pay much attention in the first instance to Judge Matthew Kacsmaryk’s original decision in the case that Texas and Missouri filed against Biden challenging his suspending the Remain in Mexico policy. I cynically assumed that the decision would instantly be overturned. In fact, it’s quite a decent order that looks at the actual law and expects the Biden administration to comply.

Texas and Missouri claimed that the orders suspending and then terminating the Remain in Mexico policy procedurally violated the Administration Procedures Act (“APA”) and substantively violated 8 U.S.C. §1225, the Constitution, and a deal between Texas and the feds. To the surprise and chagrin of the Democrat establishment, the judge (a Trump appointee) agreed.

What I found especially interesting was that the judge concluded that the Remain in Mexico policy complied perfectly with 8 U.S.C. §1225. As he explained, if a person’s asylum claim is questionable, the government must detain that person (rather than simply releasing them into America’s interior with a court date). Significantly,

Congress allows DHS an alternative to mandatory detention in the United States: “In the case of an alien described in [Section 1225(b)(2)(A)] who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, [DHS] may return the alien to that territory pending a proceeding under Section 1229a of this title.” § 1225(b)(2)(C). This contiguous-territory-return authority enables DHS to avoid having to detain aliens arriving on land from Mexico (or Canada), and instead allows DHS to temporarily return those aliens to the foreign territory from which they just arrived pending their immigration proceedings.

Having concluded that the law was clear and that Biden’s cursory order violated APA procedures, the judge gave the administration until August 21 to reinstate the Remain in Mexico policy. The New York Times is still shocked that the court applied the law as written:

That was a novel reading of the law, the acting solicitor general, Brian H. Fletcher, told the justices. That view had “never been accepted by any presidential administration since the statute’s enactment in 1996,” including the Trump administration, he said.

In fact, there’s nothing novel at all about reading a law as written. It’s the first rule of statutory interpretation.

The administration turned to the Fifth Circuit for a stay pending its inevitable appeal but got the cold shoulder—and on Monday, in a 107-word unsigned order, the Supreme Court also refused to stay the injunction:

The application for a stay presented to Justice Alito and by him referred to the Court is denied. The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. See Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020) (slip op., at 9- 12, 17-26). Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.

Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application.

The big question at this point is whether the Biden administration will comply with the injunction. After all, this is the same administration that went ahead with an eviction moratorium earlier this month, even though Biden openly acknowledged that it was unconstitutional—something he knew because Justice Kavanaugh had described it as such in an order declaring as essentially moot an appeal from a prior, expiring eviction moratorium.

At this point, I feel compelled to point out that Trump, who was supposed to have violated all known norms, never ignored the Supreme Court. Meanwhile, Joe “Mr. Normal” Biden, has had the most abnormal, illegal presidency in American history.

Image: Illegal immigrants in Texas. YouTube screen grab.

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