The Supreme Court deals with a challenge on Tuesday (Biden v. Texas) to the Biden Administration’s Repeal of the Trump Migrant Protection Protocols – aka “Stay in Mexico.” But the effort goes beyond the limit and hits the core of the constitutional separation of powers.
On his first day in office, President Biden instructed his Department of Homeland Security to investigate whether he should resign or change Remain in Mexico. DHS ended the policy in June last year. The two questions before the High Court are whether DHS followed a proper administrative procedure and whether the law allows it to terminate the policy. The answers are no and no.
The Trump administration implemented Remain in Mexico in early 2019 to deal with an increase in migrants seeking asylum. With DHS’s total detention capacity at 34,618, the government had released migrants apprehended at the US border
Staying in Mexico requires non-Mexican migrants to wait in Mexico until their asylum applications are processed. Not noted by critics is that Congress established the legal basis for this policy as part of the 1996 bipartisan immigration reform. Late. Joe Biden voted in favor.
The law states that migrants who “clearly and unequivocally have the right to be admitted… Must be detained.” It is an order of the executive. But Congress also provided a safety valve if the government lacks detention capacity: “The Attorney General may return the alien” to Mexico “pending a case.”
The law also states that DHS may release migrants in the United States “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” But this discretionary authority is not a license to release migrants en masse to the United States when it lacks detention space, as the Biden administration claims. It was intended for discrete cases, namely migrants in urgent need of medical attention.
Texas plausibly claims that the administration’s mass releases violate the 1996 law. And if the government lacks sufficient capacity to detain migrants, it is really necessary to continue Remain in Mexico.
It is true that administrations had released migrants to the United States before they returned to Mexico. But the numbers were far lower than the 757,857 released by the Biden administration between January 21, 2021 and February 28, 2022. Previous administrations also carried out accelerated deportations, which this administration has slowed down.
Texas also claims that the administration is trying to circumvent judicial review under the Administrative Procedures Act. A district court has ordered Remain in Mexico to resign after finding DHS failed to consider the states’ trust interests, policy benefits, potential alternatives and legal implications. In August last year, the High Court upheld the ban with reference to its Regents decision blocking the Trump administration’s DACA repeal.
Instead of returning to the drawing board, the administration appealed the lower judge’s decision on the facts to the fifth court of appeal. So days before the oral argument, it issued two new notes justifying its termination, arguing, among other things, that Remain in Mexico “benefits do not justify costs” and “diverted attention from more productive” border policies.
It told the Court of Appeal that its new notes superseded its old one and that Texas’ challenge was therefore unresolved and the lower court’s injunction should be waived. Voila! All the administration has to do to win a case is write a new note. But the case is not at all controversial, as a panel from the Fifth Circuit explained in its decision that the new notes had no legal effect.
“The Government’s theory of misconduct will enable an administrative agency to permanently avoid judicial review by issuing an endless litany of new notes to ‘mention’ any negative court order,” wrote Fifth Circuit Judge Andrew Oldham. “This is a game with heads I win, tails I win, and I win without even bothering to flip the coin. “
The U.S. Constitution gives Congress broad power to regulate immigration, but the administration says it can ignore Congress and use its discretion not to enforce the law. But under the U.S. system of checks and balances, the executive branch cannot choose which laws to enforce and then claim that its decisions are beyond judicial control. Judges have a constitutional obligation to order the administration to follow the command of Congress.
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Released in print on April 26, 2022 as ” Stay in Mexico ‘Goes to the Supremes.’