SCOTUS’s Narrow Ruling on Remain in Mexico Punts on the Real Question

By Mark Krikorian on July 2, 2022

The Supreme Court ruled Thursday that the Biden administration may end the Remain in Mexico program (formally known as the Migrant Protection Protocols, or MPP) started by the Trump administration. In fact, since the lower court’s injunction against the termination of MPP is invalidated, it seems like MPP turns into a pumpkin immediately. But this isn’t really the victory some on the Democratic side seem to think.

It’s true the Court ruled that the district court could not enjoin the termination of MPP. But the administration wasn’t using MPP for more than a handful of border-jumpers in any case; of about 1.2 million illegal aliens “encountered” at the southern border from December through May, only about 5,000 were required to remain in Mexico. The border is truly a disaster, but ending MPP as the Biden folks are using it isn’t likely to make things much worse.

The justices sent the most consequential questions back to the lower courts. Of those, the less salient one is whether the administration complied with the various requirements of the Administrative Procedure Act when issuing the termination. The lower courts could still find that the termination was “arbitrary and capricious” or violated the APA in some other way. This is the weapon liberal judges used against Trump’s various immigration actions, but even if they find APA violations, SCOTUS has said only it can issue such injunctions. In any case, it’s likely Biden’s DHS will jump through the needed hoops to comply and kill MPP once and for all (well, at least until the DeSantis administration comes in).

But what makes this what my colleague Andrew Arthur describes as the “Most Significant Immigration Case — Ever” is the overarching question: Can a president just release illegal border-crossers into the United States en masse? Federal law requires that border-crossers be detained until they’re either deported or granted some status (like asylum). DHS has the option of making them wait outside the country (hence, Remain in Mexico) instead. The only other option is a very limited authority to release them on “parole” — “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” The plaintiffs claim that the administration is violating the law because it’s neither making illegals wait in Mexico nor detaining them, but instead releasing them wholesale, without any case-by-case consideration and without even pretending that there’s any humanitarian urgency or public benefit.

Roberts specifically noted that those questions were not decided by the Court today and sent them back to the lower courts. Since the lower courts have already ruled against the administration on the narrow question SCOTUS addressed today, it’s a good bet that they will rule that the administration’s daily mass release of border-jumpers is illegal, and the case will come back to the Supreme Court, where the outcome might be very different from today’s ruling.

Such a victory would be bittersweet, though, because Biden’s DHS is releasing thousands of illegal aliens into the country every day, people who will never leave even when they lose their asylum claims, assuming they even bothered to apply. Court filings reveal that the Biden administration has released more than 1 million illegal border-crossers into the country since inauguration day — so every day this case drags on it creates more illegal-alien facts on the ground that will be difficult for a future administration to undo.