The U.S. Supreme Court today rejected Republican attempts to hold onto the Migrant Protection Protocols, more commonly known as the Remain in Mexico program. In a split decision that spanned the Court’s ideological camps, six justices agreed that the Biden administration can end the Trump era initiative that turned back migrants at the southwestern border. In a separate opinion, Justice Amy Barrett noted that she agreed with the majority’s analysis on the merits of the dispute but, in her view, the Court should not have resolved those questions.
Launched by the Trump administration in December 2018, the MPP forced non-Mexicans to wait in Mexico while U.S. immigration authorities weighed their legal claims. As a result, migrant camps developed in several Mexican border cities. Though the administration of Mexico’s President Andrés Manuel López Obrador agreed to allow the U.S. to return these individuals into Mexican territory, the MPP created tense diplomatic conversations. The Biden administration began unraveling the MPP on President Biden’s first day in office. On June 1, 2021, Secretary of Homeland Security Alejandro Mayorkas issued a memo officially terminating the MPP. After a federal district court rejected the rationale in that memo in the early stages of the lawsuit that the Supreme Court ultimately took up, Mayorkas issued a lengthier, more detailed memo on October 29, 2021.
In an opinion written by Chief Justice John Roberts, the court dispensed with the claims made by Texas and a handful of other Republican-led states that the Department of Homeland Security is required either to detain migrants or release them into Mexico. The majority opinion in Biden v. Texas, No. 21-954 (June 30, 2022), held that DHS “may” return migrants to Mexico under initiatives like the MPP, but it is not required to do so. “The statute says ‘may.’ And ‘may’ does not just suggest discretion, it ‘clearly connotes’ it,” Roberts wrote. The alternative view adopted by the district court and affirmed by the U.S. Court of Appeals for the Fifth Circuit would “force the Executive to the bargaining table with Mexico, over a policy that both countries wish to terminate,” Roberts explained. “Congress did not intend [8 U.S.C.] section 1225(b)(2)(C) to tie the hands of the Executive in this manner,” he added.
The Court’s opinion did not address whether the Immigration and Nationality Act requires DHS to detain everyone who might be inadmissible to the United States, as the states contended. Instead, it positioned detention as one among many options available to the federal government. If DHS chooses not to send people back into Mexico, it can detain them in any of ICE’s hundreds of prison facilities, though as both the majority and Justice Kavanaugh’s separate concurring opinion acknowledge, Congress has never allocated enough funding to detain everyone who is detainable.
The majority did note that no presidential administration has ever viewed returning migrants to Mexico as the only alternative to imprisonment. Instead, DHS can allow them into the United States under the federal government’s parole power on a case-by-case basis.
The majority of justices also took the position that the October 29 memo issued by Secretary Mayorkas meets the legal requirements to be reviewed under the Administrative Procedure Act. The October 29 memo, the majority concluded, was a final agency action because it memorialized the department’s decisionmaking process and bound DHS staff. The states argued that the Biden DHS failed to meet APA requirements just like the Trump DHS failed to do so when it tried to end the Obama era Deferred Action for Childhood Arrivals program. In that instance, Secretary of Homeland Security Kirstjen Nielsen used a second memo to augment an initial memo that itself had “little relationship to that of her predecessor.” That was impermissible post hoc rationalization, the majority concluded. By contrast, Secretary Mayorkas didn’t double down on his first memo. After the district court concluded it was faulty, Mayorkas explicitly moved on from that memo, explaining in the October 29 memo that he was withdrawing the first memo. “Having returned to the drawing table” in light of the district court’s feedback, Mayorkas articulated new reasons for ending the MPP. That strategy is more difficult than the route Nielsen took, but it allowed Mayorkas to rest on new reasons for ending MPP.
Since the Court allowed the October 29 memo to stand, DHS can end MPP immediately. In that memo, Mayorkas wrote, “the termination of MPP will be implemented as soon as practicable after a final judicial decision to vacate the Texas injunction.” Today, DHS got that final judicial decision. Now we’ll see if the Biden administration still has the political will to go through with it.
Either way, this isn’t the last we’re likely to hear about MPP. The case will now head back to the lower courts. The majority opinion instructs the district court to consider whether the October 29 memo complies with the Administrative Procedure Act.
In an important discussion that will significantly impact challenges to immigration policies moving forward, the majority also concluded that district courts lack power to block enforcement of immigration policies by issuing injunctions. Building on a decision released earlier in June, Garland v. Aleman Gonzalez (June 13, 2022), the majority concluded that 8 U.S.C. § 1252(f)(1) barred the district court from entering an injunction blocking the Biden DHS from ending the MPP. No matter what the agency did or didn’t do, § 1252(f)(1) prohibits district courts from providing injunctive relief in litigation over immigration policies. That’s exactly what the district court did here, but that doesn’t mean the Supreme Court can’t review the merits of the appeal. It can, and when it does it can grant injunctive relief if it deems that appropriate because the statute explicitly exempts the Supreme Court.
This part of the Court’s decision means that future challenges to immigration policies won’t result in injunctions if they are grounded in the Immigration and Nationality Act. That is, claims that DHS is violating the INA won’t be able to result in a lower court blocking the administration from carrying out its chosen policy. Instead, only the Supreme Court will be able to do that.
That said, this is narrower than it sounds. First, lower courts can continue to provide declaratory relief in INA challenges. Second, Congress blocked district courts from issuing injunctions when considering claims under the INA only. Other statutes don’t have a similar clause so district courts will continue to be able to grant injunctions when they find that other laws are violated, including the Administrative Procedure Act or constitutional provisions. In other words, when courts in future legal fights over immigration policies decide that the federal government has violated the APA or some constitutional amendment, they will still be able to block DHS from carrying out its immigration policy preferences.
It’s entirely possible we will see just that when Texas resumes its fight to hold onto MPP in the district court. Given the majority’s emphasis on the foreign policy implications of MPP, though, I struggle to imagine that they would stand for a lower court ordering DHS to stick with MPP like the district court judge did in this case.
This article was republished at Law360 on July 6, 2022.