A federal district court ruling earlier this month ordered the Department of Homeland Security to reinstate the Migrant Protection Protocols — commonly known as the “Remain in Mexico” policy — that had been implemented by former President Donald Trump.
President Joe Biden terminated the policy upon entering office and appealed the recent ruling to the U.S. Supreme Court, which voted 6-3 this week to deny a request to block its reinstatement.
The DHS will now be compelled to reinstate the policy, which requires asylum-seekers to wait in Mexico until their claims are processed, until the courts rule on a broader lawsuit filed by Texas and Missouri in opposition to terminating it.
In an unsigned order handed down this week, the nation’s highest court asserted that the Biden administration’s application for a stay had been denied.
“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,” the order continued. “Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.”
The court’s liberal wing — made up of Justices Stephen Breyer, Elena Kagen, and Sonia Sotomayor — signaled that they would have granted the administration’s request to block the lower court’s order.
In response to Tuesday’s ruling, the DHS released a statement indicating that it “respectfully disagrees” with the district court’s order and “regrets” the Supreme Court’s decision to uphold that decision.
The agency went on to assert that it would “vigorously challenge” the initial order via appeals and will “comply with the order in good faith” in the meantime.
U.S. District Judge Matthew Kacsmaryk based his decision on the determination that the Biden administration violated the Administrative Procedures Act and certain immigration-related statutes by suspending and later terminating the MPP without having completed requisite bureaucratic steps.
The judge set Saturday as the deadline for the administration to reinstate the program, but Supreme Court Justice Samuel Alito granted an extension to allow for arguments to be made in court.
Of course, the latest development is just temporary and will protect the policy until the issue is fully litigated.
Although the Biden administration could still meet the APA and other requirements allowing it to rescind the Trump-era policy, this week’s decision clearly represents a setback for the Biden administration and a victory for those in favor of a program created to provide greater border security.