The Supreme Court will be finishing out its term Thursday, and Biden v. Texas — a challenge by plaintiff states to the Biden administration’s attempts to rescind the Migrant Protection Protocols (MPP), better known as “Remain in Mexico” — is one of two opinions yet to be issued. That means that a decision in the case will be coming tomorrow — maybe. Or perhaps the Court will postpone the decision until the fall or dismiss the government’s petition. As Tom Petty said: “The waiting is the hardest part.”
The Latest State of Play on MPP. Illegal immigration plummeted directly after Donald Trump became president. That decline was likely due to what my colleague Todd Bensman referred to as the “Trump effect”, a reaction to candidate Donald Trump’s campaign-trail rhetoric, which dissuaded many would-be illicit entrants.
In December 2016, for example, Border Patrol apprehended more than 43,250 illegal migrants at the Southwest border, a number that dropped to just over 11,125 apprehensions three months after Trump took office, in April 2017.
Apprehensions there ticked up within a few months as would-be illegal migrants (and more importantly smugglers) realized Trump’s words were hollow without congressional action to plug the loopholes aliens had begun exploiting in recent years.
Then-DHS Secretary Kirstjen Nielsen declared a “border emergency” at the end of March 2019, when Border Patrol caught almost 93,000 illegal migrants at the Southwest border.
By that point, the Trump administration had begun planning policies to address this surge — most notably MPP, which Nielsen set in motion in January 2019.
Under MPP, DHS can return “other than Mexican” (OTM) migrants caught entering illegally or without proper documents back to Mexico — where the Mexican government agreed to provide them with protection for the duration of their stays — to await removal hearings. They are then paroled into the United States long enough to apply for asylum.
Trump was slow to implement MPP, largely because it was subject to various injunctions and required the cooperation of the Mexican government. By middle to late summer, however, it was up and running and illegal migration plummeted, largely in response to the program. By September 2019, Southwest border apprehensions fell to just over 40,500 — an almost 62 percent decline from May.
In February 2020, the last month before the Covid-19 pandemic was declared, there were fewer than 31,000 Border Patrol apprehensions at the U.S.-Mexico line.
Of course, everything changed once that pandemic was declared. In late March 2020, the CDC issued the first of its orders under Title 42 of the U.S. Code directing the immediate expulsion of illegal migrants at the land borders. Most illegal migrants at the Southwest border were expelled under Trump, and apprehensions bottomed out at fewer than 16,200 in April 2020.
In its October 2019 assessment of the program, DHS determined that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien migrant families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.
With the advent of Title 42, however, MPP was no longer as important to border security as it once had been, though nonetheless it continued on a much smaller scale. By the end of December 2020, a total of 68,039 migrants had been enrolled in MPP.
Despite its success, Biden denounced MPP on the campaign trail, and one of his first acts as president was to suspend new enrollments in the program.
The Case. That suspension prompted the states of Texas and Missouri to file suit in federal district court in Texas to force reinstatement of Remain in Mexico in April. 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.
The government then went back and appealed Judge Kacsmaryk’s injunction to the Fifth Circuit, though while that appeal was pending (and just days before oral argument), Mayorkas issued a second memo terminating MPP on October 29.
The timing of that second termination memo did not sit well with the three-judge circuit court panel. At oral argument on November 2, Judge Kurt Engelhardt described it as “suspicious and disappointing” that the Biden administration had issued a new memorandum mere days before arguments were heard. He continued: “Why is it an Oct. 29 memo and not an Oct. 1 memo or a Sept. 15 memo? The motion comes with some suspicion of gamesmanship.”
In any event, the Fifth Circuit affirmed Judge Kacsmaryk’s injunction on December 13 in a lengthy and sharply worded order, which included extended references to “English law’s struggle against royal prerogative” leading up to Britain’s 1689 “Glorious Revolution”.
The Court heard arguments in the case on April 26, and the justices were all over the place, as I reported on May 5 and May 15. What the justices and the parties failed to discuss (or just got wrong) was as important as what they did cover.
That said, one thing that the justices were interested in was the effect of section 242(f)(1) of the INA, which limits the jurisdiction of the federal district and circuit courts to issue injunctions concerning certain immigration actions. That was unusual because the parties had barely addressed it in their briefs.
Consequently, on May 2, the Court requested additional briefs on whether section 242(f)(1) of the INA “imposes any jurisdictional or remedial limitations on the entry of” various forms of relief, including injunctions; whether those limitations may be forfeited by a party that fails to raise them; and whether the Court even had the authority to hear the issues in Texas.
Those cases involved class action injunctive relief granted by federal district courts in California and Washington, respectively, directing the government to give bond hearings with the possibility of release to aliens under final orders of removal but detained indefinitely.
Justice Alito, writing for the Court, held that section 242(f)(1) of the INA prohibits injunctions intended to protect classes of aliens. Individual aliens can bring suit notwithstanding that provision; classes of aliens cannot. In a post shortly after that decision was issued, I posited that it could have significant impact on the states’ claims in Texas.
There was one other unusual glitch in Texas. On June 6 — 41 days after the oral argument — DOJ filed an errata page with the Court. That errata page explained that certain evidence that had been previously filed with the Court was in error, including part of the document explaining and supporting Mayorkas’ second rescission of MPP.
That submission also revealed that detentions of aliens at the Southwest border — which are mandated by the INA and at issue in Texas — had dropped significantly under Biden compared to the last two administrations.
What Could Happen — Opinion, Postpone, or DIG. I have referred to Texas as the “Most Significant Immigration Case — Ever”, and that’s not hyperbole. Tied up in the matter are various profound and weighty issues, including the ability of states to sue to block or compel the federal government to act on immigration matters, the jurisdiction of the inferior courts (the district and circuit courts), and the ability of the executive to simply refuse to enforce the immigration laws.
We may not find out the answers to those questions on June 30, however. The Court issued an unusual press release on June 29, which stated: “This Court will announce all remaining opinions ready during this Term of Court on Thursday, June 30, 2022, beginning at 10 a.m.” (Emphasis added.) I don’t want to read too much into that, but the Court (known for brevity) could have simply omitted the italicized portion.
There are only two remaining cases before the Court: Texas and West Virginia v. Environmental Protection Agency. Both are likely to have major impacts, but there is no reason to believe there are any outstanding issues in West Virginia, meaning that it should be “ready”. Given all the 11th-hour activity in Texas, however, the Court may decide to wait until its next term, which begins on October 3.
Another possibility is that the Court may dismiss the matter as improvidently granted (DIG), which it recently did in another immigration case, Arizona v. City and County of San Francisco.
Arizona, which involved an attempt by that state and others to intervene in a challenge to the “public charge” rule, had a convoluted path to the Supreme Court. Most importantly, even if the Court granted Arizona and the other states the relief they had sought (to intervene in a pending Ninth Circuit challenge to Trump’s version of the rule), pending orders in other courts would still block the rule.
Chief Justice Roberts, joined by Justices Thomas, Alito, and Gorsuch concurred in dismissing Arizona, but they issued an unusual opinion that expressed concerns that the Biden administration — which wanted to repeal the Trump rule and used a pending consent judgment (to which it also agreed) blocking that rule to do so — may not “comport with the principles of administrative law”. They plainly did not like how the case had played out, but the Biden administration had placed the Court in a box from which it could not escape.
Adam Carrington, a professor at Hillsdale College, put it more bluntly, opining that the DIG in Arizona “Shows the Administration, Not Congress, Determines Our Laws”.
The Court could also DIG Texas, essentially sending the matter back to the Fifth Circuit, which notably has not considered the legality of Mayorkas’ second MPP rescission. Remand would also give the circuit court the opportunity to consider the effect of Aleman Gonzalez on Texas.
By 10:30 AM EDT on June 30, we will know the fate of the state plaintiffs’ arguments in Biden v. Texas. Or, maybe we won’t.