The Supreme Court Has Let a Lone Trump Judge Take Over Biden’s Foreign Policy

Originally Published in Slate

Dahlia Lithwick and Mark Joseph Stern – August 25, 2021

A man walks alone beside a line of cars stopped at the border crossing.
Cars queue to cross to the United States at the San Ysidro crossing port on the Mexican side of the border in Tijuana on Friday. Guillermo Arias/AFP via Getty Images

On Tuesday night, the Supreme Court issued one of the most radical orders in recent memory—and it did it in three sentences, unsigned. By a 6–3 vote, the conservative justices attacked the president’s authority to conduct foreign policy (a principle it had vehemently preserved throughout the Trump presidency) by compelling the Biden administration to revive Donald Trump’s “Remain in Mexico” policy, which required all asylum-seekers who arrive at the Southern border—including many fleeing violence in Central America—to wait for their U.S. immigration hearings in Mexico. This 2019 policy, the product of extensive negotiations between the Trump administration and the Mexican government, has been suspended for about 17 months. On Aug. 13, however, a single federal judge issued a nationwide injunction ordering the government to reinstate the long-dormant program immediately. Late Tuesday, the Supreme Court blessed this unprecedented hostile takeover of the executive’s immigration policies without bothering to explain how or why.

The implications of Tuesday’s decision are profoundly disturbing. The conservative justices spent the bulk of the Trump years insisting that courts must defer to the president’s constitutional authority over foreign affairs. Now they have allowed a lone Trump-appointed judge, Matthew J. Kacsmaryk, to force the government into sensitive diplomatic negotiations over border policy. Their decision even grants Kacsmaryk sweeping authority to oversee these negotiations so he can ensure that the Biden administration is pushing Mexican officials hard enough to revive Trump’s program, something the administration does not want to do. And they have seemingly abandoned their skepticism toward nationwide injunctions like this one—a position some held when it allowed them to undermine the federal judiciary’s check on Trump. In the process, the six Republican-appointed justices have injected chaos, confusion, and cruelty into the United States’ border policy, thrusting thousands of asylum-seekers into legal limbo.

The Supreme Court gave special immigration policy deference to Donald Trump, turning a deliberate blind eye to racist motives for the Muslim ban, under the theory that the executive branch has unique constitutional authority over immigration policy. But now, this same court, aided by a raft of conservative jurists, will refuse such deference to Biden. For those who continue to insist that the Supreme Court transcends politics, these flip-flops should prove otherwise.

Perhaps the most perverse aspect of the litigation over “Remain in Mexico”—also known as the Migrant Protection Protocols, or MPP—is that the policy itself is illegal. The Immigration and Nationality Act does allow the government to return a narrow class of migrants to “contiguous territory” while they await hearings. But, as a federal appeals court explained in 2020, the law does not allow the government to send the vast majority of asylum-seekers back to Mexico to await hearings. Doing so violates the United States’ treaty obligations as implemented in the INA, which bar the government from sending refugees back to countries where they fear persecution.

Because MPP is illegal, the Biden administration should not have had trouble repealing it. Making matters easier, Trump himself suspended the program in March 2020, replacing it with new COVID-related restrictions. It was only in effect for about 14 months and had already been suspended for 17 months. Biden’s Department of Homeland Security began to repeal the program back in January, and in June, DHS Secretary Alejandro Mayorkas issued a seven-page memo explaining why he was officially rescinding the policy.

eneral of Texas and Missouri promptly sued, arguing that the rescission was illegal. They brought their case before Kacsmaryk, who issued an astonishing decision on Aug. 13, claiming that MPP wasn’t just permissible under the INA, but actually required. Why? According to Kacsmaryk, asylum-seekers awaiting a hearing must either be detained or sent back to Mexico; they cannot be released into the U.S. Were that true, it would mean the U.S. government had inadvertently been violating federal law for nearly a quarter-century. But it is objectively false: Another provision of the law expressly permits the government to “parole” migrants into the U.S. at its own discretion. Kacsmaryk ignored this statute, declaring that the Biden administration must either detain every migrant who arrives at the U.S.-Mexican border or send them back to Mexico.

Kacsmaryk went further than simply reinstating the program. He attributed the current “border surge” to Biden’s repeal of MPP—a fundamentally political claim that is not at all supported by the record. He used this claim to give the states of Texas and Missouri standing, finding that they faced the burden of providing health care, education, and even driver’s licenses to asylum-seekers who would otherwise be held in Mexico. Kacsmaryk rejected U.S. officials’ declarations, made under oath, that restoring MPP would require negotiations with the Mexican government, falsely asserting that the U.S. could unilaterally compel Mexico to hold thousands more migrants within its borders. (It cannot.) He gave the government just one week to revive the program.

A panel of the 5th U.S. Circuit Court of Appeals (which included two Trump nominees) declined to disturb Kacsmaryk’s decision. The Biden administration, faced with the prospect of reinstating an unlawful program that no longer exists and cannot be implemented unilaterally, sought emergency relief at the Supreme Court. That move teed up an easy opportunity for the Supreme Court’s conservatives to demonstrate its lack of politicization: Throughout Trump’s presidency, lone district courts issued nationwide injunctions against his immigration policies, and virtually every time, the Supreme Court lifted these injunctions, often without explanation, letting the policies take effect. In some of these decisions, the conservative justices insisted that courts grant broad deference to the president’s foreign policy decisions, a constitutional principle that reaches back centuries.

This case gave the full court a chance to exhibit consistency between Republican and Democratic presidents. Instead, they tore up the rules they established under Trump and allowed Kacsmaryk to dictate the administration’s foreign affairs. They did not even narrow the scope of his injunction, even though Justices Clarence Thomas and Neil Gorsuch decried these kinds of nationwide injunctions when they were issued against Trump.

If the six justices in the majority truly believed that Mayorkas’ memo rescinding the program was “arbitrary and capricious,” as they implied in their opaque order, they could have asked for a better-reasoned decision. When Chief Justice John Roberts blocked Trump’s attempt to kill DACA, he laid out exactly how the president could redo the repeal lawfully. But this time, the court gave zero guidance as to how the Biden administration can fix its error—it didn’t even identify the alleged error. The booby prize is that the court alluded to language from the 5th Circuit decision finding that the administration will not violate the court order if it tries in “good faith” to reinstate the Trump-era policy. What constitutes “good faith” when you’re dealing with a defunct program and a third-party government? No one knows. So, the threat of sanctions now hangs over government officials who must initiate delicate diplomatic negotiations at the direction of a judge who does not understand immigration law.

Immigration lawyers have long objected to the Remain in Mexico policy on humanitarian grounds. When the policy was first enacted in 2019, asylum-seekers were detained under horrific conditions in camps rife with violence, rape, torture, and disease as they awaited their immigration hearings in the U.S. Human Rights First has identified more than 800 violent attacks on asylum-seekers stuck in Mexico under MPP, including kidnapping, rape, and murder.  It is no accident that one of Biden’s first actions as president was to formally suspend it, even as his larger record on border control remains mixed.

As we have suggested in the recent past, the problem with late-night emergency orders written as haikus on Post-it notes stuck to the front doors of the Supreme Court isn’t just that the parties must scramble, without guidance, to discern what it is the court wants them to do. In this case, perhaps tens of thousands of desperate asylum-seekers and their families have absolutely no clue as to what the law is now and why. We have no idea what even constitutes an emergency, or which parties have standing, or what the legal reasoning might be.

Not very long ago, the high court used its shadow docket to spank what it deemed runaway district court judges arrogating power to set immigration policy in violation of Trump’s orders. Now, the same shadow docket is being used to hand federal immigration powers to runaway district court judges, with no rule or principle set forth beyond the fact that Biden should just lose, because they say so.




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