The Biden administration on Friday afternoon asked the Supreme Court for an immediate reprieve from having to reinstate a Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers at the U.S.-Mexico border to stay in Mexico while they wait for a hearing in U.S. immigration court. Telling the justices that the lower-court order directing the administration to restore the program “threatens to create ‘a humanitarian and diplomatic emergency,’” Acting Solicitor General Brian Fletcher urged the Supreme Court to block the order, which is otherwise scheduled to go into effect early Saturday morning.
The “remain in Mexico” policy, which the Trump administration announced in 2018, is not new to the justices. In March 2020, the court allowed the Trump administration to begin enforcing the policy, formally known as the Migrant Protection Protocols, after a federal district judge in California blocked it. The court agreed in October 2020 to review a ruling by the U.S. Court of Appeals for the 9th Circuit holding that the policy was likely inconsistent with both federal immigration law and international law, but the justices dismissed the case in June 2021 at the request of the Biden administration, which had ended the policy after taking office.
The case now before the court was filed in April by Texas and Missouri, which argued (among other things) that the administration’s decision to end the policy violated federal immigration law and the federal law governing the procedures that federal administrative agencies must follow. On Aug. 13, a federal district judge in Texas ruled in the states’ favor and ordered the federal government to restore the policy by Aug. 21. The district judge denied the government’s request to put his ruling on hold while the government appealed. On Thursday, the U.S. Court of Appeals for the 5th Circuit also declined to freeze the district judge’s ruling, leading to the government’s emergency appeal at the Supreme Court.
Critics of the policy say it forced tens of thousands of migrants from Central America to reside in squalid and dangerous camps along the Mexico border while they awaited the outcome of their asylum claims. Texas and Missouri say that, without the policy in place, large numbers of migrants are entering the United States based on dubious asylum claims and imposing costs on the states.
In his 40-page filing on Friday, Fletcher defended the decision by Homeland Security Secretary Alejandro Mayorkas to end the policy as one reached after the kind of careful consideration that “easily satisfies” the “deferential standard” imposed by federal administrative law. Mayorkas, Fletcher wrote, simply concluded that the benefits from keeping the program in place were “far outweighed by” the benefits of ending it. Fletcher also stressed that the district judge’s order requiring the administration to reinstate the policy “implicates extremely sensitive issues of foreign relations” and “threaten[s] chaos at the border” – particularly in light of the COVID-19 pandemic.
Fletcher closed his filing with a pointed reminder that, during the Trump administration, the court “repeatedly stayed broad lower-court injunctions against Executive Branch policies addressing matters of immigration, foreign policy, and migration management.” The court should, he argues, “do the same here.”
The Biden administration’s request goes to Justice Samuel Alito, who handles emergency requests from the 5th Circuit. Alito can act on the request on his own or, as is more common in high-profile cases, refer it to the full court. The Biden administration has asked not only for a stay of the district court’s injunction but also for a more limited stay, also known as an administrative stay, while the Supreme Court considers the government’s request; the court could act on the request for an administrative stay very quickly.
UPDATE (11:29 p.m. on Friday, Aug. 20): Justice Samuel Alito late Friday night granted the Biden administration’s request for a limited stay of the district court’s ruling while the Supreme Court considers its application. In a brief order, Alito put the district court’s ruling on hold until 11:59 p.m. on Tuesday, Aug. 24, “so that the full Court can consider” the request. Alito also directed the states to respond to the administration’s application by 5 p.m. on Tuesday. Alito’s order gives the government, although only on a temporary basis for now, the reprieve that it sought from having to reinstate the “remain in Mexico” policy on Saturday, Aug. 21.
This post is also published on SCOTUSblog.