‘Remain in Mexico’ Update — and Support for MPP from an Unlikely Source

Litigating against MPP carries risks for Biden; revitalizing it could bring rich rewards

By Andrew R. Arthur on January 6, 2022

As the Biden administration faces a continuing surge of illegal migrants at the Southwest border, the White House — reluctantly and under court order — has reimplemented the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, on a limited basis. MPP was the most successful of President Trump’s initiatives to tamp down illegal entries, and recent support for the program has come from an unlikely source.

The Ongoing Migrant Surge and the MPP Litigation. Apprehensions across the board at the Southwest border reached historic monthly highs in October and November, as I explained on December 20. That was on top of the roughly 1.66 million illegal migrants who were caught at the U.S.-Mexican border in FY 2021, an all-time yearly record for apprehensions there.

By far, the main “pull factor” that is encouraging aliens to enter the United States illegally is the Biden administration’s wholesale rejection of Trump border policies that had successfully brought the Southwest border under control — including Remain in Mexico.

Biden denounced MPP on the campaign trail and one of his first acts as president was to suspend new enrollments in the program. That prompted the states of Texas and Missouri to file suit in federal district court in Texas to force reinstatement of the program in April. Despite the pendency of that suit, Mayorkas terminated it on June 1.

In August, Judge 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 that injunction, first from the Fifth Circuit and then the Supreme Court. Both courts rejected the government’s respective applications for a stay.

The administration filed an appeal of Judge Kacsmaryk’s underlying decision with the Fifth Circuit but promised to comply with his injunction and reinstate MPP in the interim. It took its time in doing so, however, and didn’t get MPP up and running until December 6.

Even though it was working on reinstating MPP, and despite the fact that it was appealing the district court order, DHS again attempted to rescind MPP, via a memo from Mayorkas dated October 29 (which was to go into effect when the litigation was completed).

As I explained on December 15, the timing of DHS’s second rescission of MPP prompted a stinging rebuke from the three-judge panel of the Fifth Circuit hearing the government’s appeal of Judge Kacsmaryk’s order. The panel denied that appeal in a lengthy decision, and the government has subsequently filed a petition for a writ of certiorari with the Supreme Court.

In a January 4 op-ed piece in The Hill, Nolan Rappaport, former Democratic staffer on the House Judiciary Committee (where he was my colleague for several years) argued that Supreme Court review might not be the best course of action.

He explained: “Biden may very well end up stuck with a Supreme Court decision that will end his open border policy and that will serve as precedent for killing his executive branch refusal to do interior enforcement.” It is difficult to counter his well-reasoned and exhaustive analysis.

Current State of MPP. As noted, the administration has reinstated MPP in response to Judge Kacsmaryk’s injunction, subject to several exceptions and caveats, even as it continues to litigate the case.

On January 3, Axios reported that more than 200 single male adult migrants have been returned to Mexico through El Paso, Texas, under the new MPP, and 36 have been returned to the United States for removal hearings, at which they will be allowed to seek asylum.

According to the local Fox affiliate in San Diego, Remain in Mexico was resumed for migrants through that southern California port on January 3, as well.

These numbers pale in comparison to MPP as that program was run under the Trump administration, when about 68,000 aliens were returned to Mexico during a two-year period from January 2019 to January 2021 (most entered MPP in mid to late 2019). Still, it’s a start.

I asserted above that the main pull factor drawing illegal migrants to the United States was President Biden’s reversal of Trump administration border policies, and in particular MPP. You don’t have to trust my assessment, however.

On January 3, the editorial board at Bloomberg Opinion (hardly a pro-Trump outfit) issued a piece captioned “Why ‘Remain in Mexico’ Is Worth Preserving”. It explained: “Biden’s rush to undo any immigration policies associated with his predecessor has contributed to upheaval at the border and encouraged more people to risk their lives trying to reach the U.S.”

The board argued that instead of trying to ditch MPP, the Biden administration should strengthen Remain in Mexico instead, and seek to make the program “more humane”. Doing so, they concluded, “is the best way to restore confidence in the government’s ability to administer a more fair and orderly system.”

Political Implications of MPP. The president’s immigration policies have been widely rejected by the American public, and a recent Wall Street Journal poll revealed that “immigration” was the top priority that respondents wanted the White House and Congress to address.

Although the president and congressional Democrats have been pushing hard to include a massive amnesty in their most recent “reconciliation” proposal (which could be passed without Republican input), their efforts have been stymied by three rulings from the Senate parliamentarian (as I explained in depth on January 4).

Even if Senate rules allowed that effort to continue, however (or if Democratic leadership were to break norms and ignore the parliamentarian), it would be political suicide for members to vote to legalize millions of aliens illegally present while the border is in chaos.

The 2022 midterm elections are not shaping up well for the president’s party (even in the best of times, the “out” party usually gains seats), and such a vote would likely be used by Republicans as a cudgel against their political opponents on what is, as noted, a bad issue for Biden. Plus, you can expect the GOP to paint Democrats (rightly or wrongly) as the “defund the police” party, and the disaster at the border plays into that talking point.

That is more or less the point that the Bloomberg Opinion board makes. They complain that the crisis at the border “has undermined public support for the comprehensive immigration reforms the country needs”. What they deem to be necessary “comprehensive immigration reforms” is likely very different from my take on this issue, but their claim is a sound one.

It is crucial to the national security and sovereignty of the United States for DHS to gain “operational control” of the Southwest border — as required by law. That is the only way that Border Patrol agents will be able to staunch the flood of drugs into this country, to ensure that terrorists and criminals are prevented from gaining access to our communities, and to protect migrants themselves.

Halting the largely unimpeded flow of migrants across the border would improve Democrats’ prospects in the midterm elections and raise the likelihood of passage of any “immigration reforms” that the president wishes to push. An effective Remain in Mexico program is key to that effort. Litigating against MPP carries large risks for the president; revitalizing it carries rich rewards.