On Tuesday, the Supreme Court gave the state of Texas a huge victory, ruling that the Biden administration must reinstate former President Donald Trump’s Migrant Protection Protocols (MPP) policy, also known as the “Remain in Mexico” policy.
The Biden administration had implemented a hold on the policy, but U.S. District Judge Matthew Kacsmaryk ruled earlier this month that the Biden administration had not given sufficient reason for the termination. The Biden administration then asked the Supreme Court to put Kacsmaryk’s decision on hold. As the Texas Tribune reported:
The Biden administration made an emergency request that the Supreme Court justices act, saying Kacsmaryk “fundamentally misunderstood” federal immigration law and improperly meddled in immigration and foreign policy decisions left to the executive branch. … A panel of the U.S. Court of Appeals for the 5th Circuit had largely sided with Kacsmaryk and had refused the government’s request to stay his ruling while considering the government’s appeal.
The six conservative justices of the Court agreed with Kacsmaryk’s decision, writing:
The application for a stay presented to Justice Alito and by him referred to the Court is denied. The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. … Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.
Texas GOP Governor Greg Abbott and GOP Attorney General Ken Paxton celebrated the Supreme Court’s decision:
BREAKING: The U.S. Supreme Court tells the Biden Administration to reinstate the "Remain in Mexico" policy put in place by the Trump Admin.
This halts Biden's skirting of immigration laws & will reduce the record number of migrants entering illegally.
— Greg Abbott (@GregAbbott_TX) August 25, 2021
PAXTON WINS AGAIN – REINSTATED Trump's Remain in Mexico Policy! The US Supreme Court ruled for TX – again. SCOTUS said Remain in Mexico policy must be implemented now! #MPP #Immigration #Trump #BidenBorderCrisis pic.twitter.com/G3lCEJqZxS
— Attorney General Ken Paxton (@KenPaxtonTX) August 25, 2021
In March 2020, the Heritage Foundation wrote of the Trump administration’s “Remain in Mexico” policy:
Once word got out about this new policy, the number of illegal crossings plummeted. With the cooperation of the Mexican government, more than 60,000 illegal immigrants were returned to Mexico over a 13-month period. New immigration courts at key crossing points like Laredo, Texas, drastically reduced the time needed to process asylum claims, so that refugees with legitimate asylum claims had their cases heard much faster.
Acting Homeland Security Secretary Chad Wolf said the MPP “allowed us to take control of the crisis” at the border that was overwhelming the Border Patrol and our immigration capabilities.
The Biden administration put a temporary hold on MPP the day Biden was inaugurated. On June 1, 2021, Homeland Security Secretary Alejandro Mayorkas announced he was ending the policy, writing in a memo:
I have determined that MPP does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls. Over the course of the program, border encounters increased during certain periods and decreased during others.
Based on Department policy documents, DHS originally intended the program to more quickly adjudicate legitimate asylum claims and clear asylum backlogs. It is certainly true that some removal proceedings conducted pursuant to MPP were completed more expeditiously than is typical for non-detained cases, but this came with certain significant drawbacks that are cause for concern. The focus on speed was not always matched with sufficient efforts to ensure that conditions in Mexico enabled migrants to attend their immigration proceedings.