SCOTUS Ruling Allows 'Remain in Mexico' Policy to Resume
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SCOTUS Won’t Block Ruling Forcing Biden Administration to Continue Trump’s ‘Remain in Mexico’ Policy

The Supreme Court of the United States issued an unsigned order late Tuesday night that will effectively force President Joe Biden’s government to reinstate the Trump administration controversial “Remain in Mexico” policy.

The policy, known formally as “Migrant Protection Protocols” (MPP), requires refugees and asylum-seekers to remain in Mexico indefinitely while their asylum applications are processed in the United States.  Because the affected individuals are forced to remain in Mexico, they are deprived due process and access to counsel. The MPP has long been criticized by immigration and human-rights advocates who argue it contributes to the humanitarian crisis at the U.S.-Mexico border.

MPP was the subject of multiple lawsuits during the Donald Trump administration. After President Biden took office, however, the federal government voluntarily discontinued the program and declined to defend its legality in court. On that basis, the Supreme Court removed the case from its docket in February 2021.

Shortly thereafter, Texas Attorney General Ken Paxton (R) and Missouri Attorney General Eric Schmitt (R) filed a joint lawsuit against the Biden administration challenging the administration’s “unexplained and inexplicable” end of MPP.  The joint complaint, filed in U.S. District Court for the Northern District of Texas, alleged that Biden’s “arbitrary and capricious” decision to discontinue MPP caused a “huge surge of Central American migrants” at substantial cost to the state governments.

The Supreme Court issued the two-paragraph unsigned order, the type of ruling academics increasingly describe as the Court’s “shadow docket.” The Court’s order gave no explanation for its ruling, save a citation of a 2020 immigration case. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan indicated that they would have voted differently — to grant the application for a stay.

The case the high court cited was the Court’s 2020 ruling in Homeland Security v. Regents of Univ. of Cal. That case had also been about the fate of immigration policies during the transition from one presidential administration to another. More specifically, SCOTUS ruled that the Trump administration dismantled President Barack Obama‘s DACA (Deferred Action on Childhood Arrivals) program in the wrong way.

In that case, Chief Justice John Roberts clarified that the dispute is not whether DHS is legally entitled to rescind DACA. “All parties agree that it may,” noted the chief justice. “The dispute is instead primarily about the procedure the agency followed in doing so.”

Much to the chagrin of immigration advocates, the very ruling that kept DACA alive has now done the for MPP.

Marielena Hincapié, executive director of the National Immigration Law Center and the NILC Immigrant Justice Fund, issued a following statement in response to the Supreme Court’s ruling Tuesday. “We at the National Immigration Law Center are deeply disappointed that the Supreme Court failed to pause the lower court order,” Hincapié said. “We are committed to doing everything we can to prevent this egregious policy from harming one more person and will use every tool at our disposal to oppose the Remain in Mexico policy, or any like it, and we urge the Biden administration to do the same.”

Missouri Attorney General Eric Schmitt also issued a statement calling MPP “a successful President Trump-era policy that helped fight the crisis at the border.” “After we won at the federal court and the 5th Circuit Court of Appeals,” continued Schmitt, “we have again prevailed over Biden’s Department of Justice at the Supreme Court tonight – the Migrant Protection Protocols must be reinstated.” Schmitt called the ruling “a huge win for border security and the rule of law,” and said that it “highlights our efforts to continually fight back on federal government overreach.”

This is a developing story.

Read the ruling below:

[image via Stefani Reynolds/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos