Late Tuesday, August 24, the Supreme Court dealt a blow to President Joe Biden’s plans to overturn the Remain in Mexico policy set up by former President Trump. Also known as the Migrant Protection Protocols (MPP), the program required migrants traveling through Mexico to remain in that country while their cases were being processed; it was rescinded in an effort to roll back Trump-era immigration policies that the administration said were harmful to migrants and not in the best interest of the United States.
In April, Texas and Missouri filed a lawsuit claiming that Biden’s decision was financially injurious to the states as they would have to direct more resources to fight human trafficking and other crimes. The suit was successfully argued, and this month, U.S. District Judge Matthew Kacsmaryk ruled that the administration violated federal procedural law both in January when it suspended the policy and in June when it attempted to cancel it entirely. Kacsmaryk determined that the move was arbitrary and capricious, and in violation of the Administrative Procedures Act.
Missouri Attorney General Eric Schmitt said in July that, “Anyone who is paying attention knows we have a 21-year high in border crossings, drug traffickers, and human traffickers have been emboldened, and that affects not just Texas but states like Missouri.” He argued, “It is clear that the Biden administration didn’t consider anything relevant to how it was working or notice and comment, and obviously we have a crisis at the border now.”
The Department of Homeland Security had attempted to have Judge Kacsmaryk’s initial decision overturned. However, both a federal judge in Texas and the 5th Circuit Court of Appeals refused the administration’s request to put a hold on Kacsmaryk’s ruling.
The Supreme Court’s six conservative justices agreed that the initial order should stay, with the three liberal justices, Sonia Sotomayor, Elena Kagan, and Stephen Breyer, all indicating that they would have granted the application. Justice Samuel Alito, writing the decision, noted that, “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.”
In the wake of the Supreme Court decision, the Department of Homeland Security released a statement, saying it “respectfully disagrees with the district court’s decision and regrets that the Supreme Court declined to issue a stay.” The statement continued:
“DHS has appealed the district court’s order and will continue to vigorously challenge it. As the appeal process continues, however, DHS will comply with the order in good faith. Alongside interagency partners, DHS has begun to engage with the Government of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols.”
With numerous strikes from multiple courts, the path forward for the DHS to rescind the Remain in Mexico policy does not look positive.