Biggest Casualty of SCOTUS Remain in Mexico Opinion: Transparency

‘Sunshine is the best of disinfectants’, and the Court needs to keep the border numbers coming

By Andrew R. Arthur on July 1, 2022

As I’ve noted, the Supreme Court on June 30 issued its decision in Biden v. Texas. The Court reversed and remanded a Fifth Circuit decision dismissing the Biden administration’s appeal of a district court order that had enjoined DHS Secretary Alejandro Mayorkas’ June 1 termination of the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. The order will have little practical effect on the disaster at the Southwest border; the biggest casualty will be transparency, unless the district court continues to order DHS to provide statistics on its border apprehensions and releases.

The Biden Transparency Problem. Every administration comes into office promising to be the “most transparent in history”, and generally the harder they harp on the claim, the tighter the drapes in the Oval Office are drawn in short order.

As Anna Diakun from the Knight First Amendment Institute at Columbia University opined on CNN a year into the Biden administration:

On President Joe Biden's first day in office, White House press secretary Jen Psaki pledged that the administration would "bring transparency and truth back to government." While the administration took some initial steps toward fulfilling this pledge, it has simply failed to act on a number of transparency issues. Worse, the administration seems to be embracing the opaque and undemocratic policies of its predecessors on a few other fronts.

She is definitely correct in her assessment as it relates to the president’s immigration policies. I rely on facts and statistics to make my assessments, arrive at my conclusions, and support my opinions, but as I have stated many times in the past, several of my efforts have been stymied by an administration that holds such facts close to the vest.

The Biden administration has been particularly opaque when it comes to the border. For years, CBP has reported monthly on the number of aliens apprehended by Border Patrol at the U.S.- Mexico line, the number deemed inadmissible by CBP officers at the Southwest border ports, the number expelled under CDC orders issued under Title 42 of the U.S. Code in response to the pandemic, and the number processed under the Immigration and Nationality Act (INA).

Under Biden, however, the agency says nothing about the number of illegal entrant “got-aways” who successfully evaded apprehension, the number of aliens processed under the INA who were released from custody, the number who were subject to expedited removal, or even what its parole policies are.

Just after the election and before the beginning of the Biden administration, I expressed my gratitude to the outgoing one for its openness with respect to such facts, and hoped that the 46th president would follow his predecessor’s lead. No such luck. I was left poring over congressional testimony to pull out nuggets and breadcrumbs to find the most basic of details.

Biden v. Texas, and Judge Kacsmaryk’s Order. In April 2021, in response to the Biden administration’s suspension of the Trump-era Migrant Protection Protocols, the states of Texas and Missouri filed suit in federal district court in Texas to force reinstatement of the program. Despite the pendency of that suit, Mayorkas terminated it on June 1.

In August, the judge hearing that challenge, Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, blocked DHS’s termination of MPP. The administration quickly sought a stay of that injunction, first from the Fifth Circuit and then the Supreme Court. Both courts rejected the government’s respective applications for a stay.

That triggered the appeals that brought the case (now Biden v. Texas) to the Supreme Court. In the interim, however, and to ensure compliance with his order, Judge Kacsmaryk required DHS to report monthly on the number of CBP encounters at the Southwest border, the number of aliens expelled under Title 42, and the number released into the United States

I would say those court-ordered disclosures have provided a gold mine of information, but “dross pit” is likely more apt. Because the administration neither has nor wants a policy to deter illegal entry at the Southwest border, more than 1 million migrants encountered by CBP there have been released into the United States since the inauguration.

Those disclosures also reveal, as Justice Alito stated in his dissent in Texas, that DHS has released tens of thousands of those aliens into the United States monthly on “parole” under section 212(d)(5)(A) of the INA, figures that “give[] rise to a strong inference that the Government is not really making these decisions on a case-by-case basis” as that statute requires.

The administration has attempted to hide the true scope of the catastrophe at the Southwest border, almost since day one and definitely since month four. It has already begun ramping up its efforts to conceal the mayhem that will ensue when it ends Title 42 (a separate district court judge has blocked that), and up to 18,000 illegal migrants come pouring across the border each day.

The Supreme Court’s order wipes away Judge Kacsmaryk’s injunction, and ensures that he cannot issue another one on remand. That said, there are still a number of outstanding issues in the case, as Justice Alito explained:

The District Court should assess, among other things, whether it is “arbitrary and capricious” for DHS to refuse to use its contiguous-territory return authority to avoid violations of the statute’s clear detention mandate; whether the deterrent effect that DHS found MPP produced in reducing dangerous attempted illegal border crossings, as well as MPP’s reduction of unmeritorious asylum claims, is adequately accounted for in the agency’s new decision; and whether DHS’s rescission of MPP is causing it to make parole decisions on an unlawful categorical basis rather than case-by-case, as the statute prescribes.

The statistics included in the court-ordered disclosures go directly to those issues, as well as to the one raised by Justice Kavanaugh in his concurrence: Whether paroling aliens DHS lacks the space to detain, in lieu of returning them back across the border, “provides a ‘significant public benefit’”, justifying parole under section 212(d)(5)(A) of the INA. That is largely a legal issue, but it is a factual one, too, that is dependent on the size of the population paroled and the costs that the states will incur as a result of those releases.

To address the major issues that still remain in Texas, Judge Kacsmaryk should order DHS to continue to provide monthly statistics on its migrant apprehensions and releases. A president who promised to “bring transparency and truth back to government” surely would not object. As the late Justice Brandeis explained: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”