The Supreme Court will hear a challenge on Tuesday (Biden vs. Texas) to the Biden administration’s repeal of Trump’s Migrant Protection Protocols, aka “Stay in Mexico.” But what is at stake goes beyond borders and strikes at the heart of the separation of powers in the Constitution.
President Biden, on his first day in office, asked his Department of Homeland Security to consider whether to end or modify Stay in Mexico. DHS ended the policy last June. The two issues before the High Court are whether DHS followed proper administrative procedure and whether the law allows it to terminate the policy. The answers are no and no.
The Trump administration implemented Remain in Mexico in early 2019 to deal with an increase in the number of migrants seeking asylum. Since the total detention capacity of DHS is 34,618, the government has released migrants apprehended at the border with the United States.
Staying in Mexico forces non-Mexican migrants to wait in Mexico until their asylum claim is heard. Critics failed to note that Congress established the legal basis for the policy as part of the 1996 bipartisan immigration reform. Sen. Joe Biden voted yes.
The law states that migrants who “do not have a clear and unambiguous right to be admitted. . . will be detained”. It’s an executive order. But Congress also provided a safety valve if the government lacked the capacity for detention: “The attorney general may return the alien” to Mexico “pending proceedings.”
The law also states that DHS can parole migrants to the United States “on a case-by-case basis for urgent humanitarian reasons or an important public interest.” But this discretionary authority is not a license to mass release migrants to the United States when they run out of detention space, as the Biden administration argues. It was intended for discrete cases, namely migrants in urgent need of medical care.
Texas plausibly argues that the administration’s mass releases violate the 1996 law. And if the government lacks the capacity to detain the migrants, it is effectively obligated to continue to stay in Mexico.
It is true that the administrations had released migrants in the United States before remaining in Mexico. But the numbers were far lower than the 757,857 the Biden administration released between Jan. 21, 2021 and Feb. 28, 2022. Previous administrations have also made expedited deportations, which this administration has curbed.
Texas also argues that the administration is trying to circumvent judicial review under the Administrative Procedure Act. A district court ordered the termination of Stay in Mexico after finding that DHS failed to consider state trust interests, policy benefits, potential alternatives and legal implications. The High Court last August upheld the injunction, citing its Regents decision blocking the cancellation of the DACA by the Trump administration.
Rather than go back to the drawing board, the administration appealed the lower judge’s ruling on the merits to the Fifth Circuit Court of Appeals. Days before the closing argument, he released two new memos justifying his termination, which claimed, among other things, that “the benefits of staying in Mexico do not justify the costs” and “diverted attention from more productive border policies.” .
He told the appeals court that his new memos superseded the old ones and therefore the Texas challenge was moot and the lower court injunction should be overturned. So ! All the administration has to do to win a case is type in a new memo. But the case is by no means moot, as a Fifth Circuit panel explained in its ruling that the new memos had no legal effect.
“The government’s theory of mootness would allow an administrative agency to permanently avoid judicial review by issuing an endless litany of new memos to ‘discuss’ any adverse judicial decision,” the fifth judge wrote. Andrew Oldham circuit. “It’s a head game I win, tails I win, and I win without even bothering to flip the coin.
The US Constitution grants Congress broad power to regulate immigration, but the administration says it can ignore Congress and use its discretion to not enforce the law. But under the US system of checks and balances, the executive cannot choose which laws to apply and then claim that its decisions are beyond judicial review. The judges have a constitutional obligation to order the administration to follow the orders of Congress.
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Appeared in the April 26, 2022 print edition as ”Remain in Mexico’ Goes to the Supremes.’