Supreme Court Speeds Review of ‘Remain in Mexico’ Decision

Mayorkas better start beefing up detention space, or reinstate MPP in good faith

By Andrew R. Arthur on August 21, 2021

On August 13, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas issued an order enjoining the Biden administration’s termination of the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

On Friday night, Justice Samuel Alito speeded the Supreme Court’s consideration of that decision.

Judge Kacsmaryk had stayed that injunction for seven days to allow the Biden administration to seek appellate review. The Biden DOJ sought a stay of that injunction pending appeal from the Fifth Circuit. On August 19, a three-judge panel of circuit judges issued a per curiam decision (unsigned but issued for the full panel) that denied that request for a stay.

Here is an interesting takeaway from that decision: The government had argued that a stay of MPP could not redress the harm that the termination of the program inflicted on the state of Texas because the government of Mexico (where those migrants would be returned) could refuse to take them back.

The panel noted, correctly, that DHS could refuse admission to inadmissible aliens at the ports of entry (Mexico must take them back, and in my opinion, if the U.S. government were to do so, Mexico would have more impetus to enforce its own immigration laws at its own southern border).

It continued: “Further, Mexico issued a statement in 2018 consenting to admit aliens excluded from the United States under MPP— and nothing in the record suggests Mexico has since retracted that consent.” That is significant, and if the government of Mexico has retracted its consent to MPP, and the Biden administration failed to put that recission in the record, it would be epic malpractice.

The panel concluded that the Biden administration had failed to show a likelihood of success on appeal (crucial to the court’s stay analysis) and that it had not shown that it would “be irreparably injured absent a stay pending appeal”.

The court found that the government’s arguments in this regard were “largely built on two strawmen”.

The first strawman was that DHS could not quickly reimplement MPP. The panel held that Judge Kacsmaryk did not order that, though. Rather, his order stated that “once the injunction takes effect on August 21, DHS must ‘enforce and implement MPP in good faith.’” [Emphasis in original.]

The second strawman was that DHS could not build detention facilities quickly enough to house all of the illegal migrants it is apprehending on the Southwest border.

The panel held that the lower court’s order did not require it to detain every alien whose detention is mandated by section 235 of the Immigration and Nationality Act (INA), which is all of those who entered illegally or without proper documents, as I explained in the post on Judge Kacsmaryk's ruling.

Rather, it required the Biden administration “to ‘enforce and implement MPP in good faith . . . until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention.’” (Emphasis in original.)

The panel then listed the alternatives that the administration could use to deal with those migrants, including releasing some of them on parole (but only “on a case-by-case basis for urgent humanitarian reasons or significant public benefit” (emphasis in original), meaning that it could not issue a blanket parole policy), sending some of them back across the border, or releasing those arrested by warrant on bond.

The circuit court then got to the most important point. It held:

What the Government cannot do, the district court held, is simply release every alien described in [section 235 of the INA] en masse into the United States. The Government has not pointed to a single word anywhere in the INA that suggests it can do that. And the Government cannot claim an irreparable injury from being enjoined against an action that it has no statutory authorization to take.

The panel held that most of the injuries that the Biden administration had alleged were “self-inflicted”, and they are right. Since the inauguration (and well before), I have argued that the Biden administration was facing a huge migrant surge and had no legal imprimatur to simply release hundreds of thousands of illegal migrants as a group into the United States. At least I am vindicated.

The Biden administration, however, had treated the immigration laws of the United States as, at best, suggestions for how it should deal with removable aliens in the United States. The Fifth Circuit’s order is proof that the words in the INA have meaning and impose obligations on the Biden administration to actually deal with the problem that it has created.

Both Judge Kacsmaryk and the Fifth Circuit held that the state of Texas is suffering real injuries from the Biden administration’s non-enforcement of the law at the border. Texas cannot deal with illegal immigration itself; it is wholly dependent on the federal government to do so, which means the federal government has to act, not offer excuses for and try to paper over its own incompetence.

On August 20, Biden’s DOJ filed an application for a stay with the Supreme Court of Judge Kacsmaryk’s order, pending full appeal to the Fifth Circuit, addressed to Justice Alito (the circuit justice for the Fifth Circuit). As noted, late on August 20, Justice Alito granted a very temporary stay of that injunction until 11:59 pm on Tuesday, August 24.

He directed the respondents (the states of Texas and Missouri, the original plaintiffs in that case) to file their response to DOJ’s application for a stay by 5 p.m. on August 24. It looks like the folks in the attorneys general’s offices in Austin and Jefferson City will be working over the weekend.

I never want to project what the High Court will do, but Justice Alito’s short leash suggests that the odds of the Biden administration succeeding on this one are slim. The justice could have simply issued a full stay—and allowed the chaotic status quo at the border to continue—until the Fifth Circuit could consider the whole case. That would have been the easy path to take, but it’s not the one he chose.

In any event, the Biden administration is facing some tough headwinds. Six of the justices on the Court were appointed by Republican presidents (although they certainly weren’t rubberstamps for the Trump administration’s immigration initiatives), but more importantly, those six are, to one degree or another, literalists, meaning that the words of the statute matter to them.

In this case, the words in section 235 of the INA are clear. The government can deal with illegal migrants by detaining them, sending them back to Mexico to await their removal hearings, or releasing them individually on parole. It cannot free them en masse into the interior of the United States, which is happening at the border right now.

I have some sympathy for the Biden administration, but not much. Despite its denials, the humanitarian and national-security disaster at the border is largely the result of the president’s own rhetoric, and his thoughtless and knee-jerk recission of many of his predecessor’s policies (in particular MPP) that had successfully held illegal immigration in check for well over a year.

Biden plainly did not like Trump, and his abandonment of Trump’s border policies was more of a tantrum than anything else. Of course, Biden was free to do so, provided he substituted his own, effective policies, for the ones that he trashed. He simply failed to even acknowledge that such policies were necessary, and so the administration is floundering at the border.

You don’t have to trust me on the latter point. On August 13, Fox News reported that DHS Secretary Alejandro Mayorkas “met privately with Border Patrol agents in Texas and said in leaked audio that the border crisis is ‘unsustainable’ and ‘we're going to lose’ if "borders are the first line of defense." That is a stunning admission, and underreported. Of course, he offered no solutions to the problem.

My eyes will be on the Supreme Court website on Tuesday night to see what the justices have to say. In the interim, however, Mayorkas and his crew should be getting ready to either beef up detention, or reimplement MPP in good faith.