On Tuesday, the Supreme Court issued a brief order denying an application for a stay of a lower court’s ruling that President Joe BidenJoe BidenFighter jet escorts aircraft that entered restricted airspace during UN gathering Julian Castro knocks Biden administration over refugee policy FBI investigating alleged assault on Fort Bliss soldier at Afghan refugee camp MORE must adhere to the Trump administration’s so-called “Migrant Protection Protocols” (MPP) requiring asylum seekers to wait in Mexico pending a hearing.
Numerous media outlets have mistakenly characterized this order as a clear ruling that Biden must revive former President TrumpDonald TrumpJulian Castro knocks Biden administration over refugee policy Overnight Energy & Environment — League of Conservation Voters — Climate summit chief says US needs to 'show progress' on environment Five takeaways from Arizona's audit results MORE’s MPP program, notwithstanding Biden’s executive order reconsidering it and the Department of Homeland Security’s (DHS) subsequent decision to terminate the policy. But this frame is inaccurate. All the court did was refuse to temporarily lift the lower court’s injunction forcing Biden to reinvigorate the MPP pending full briefing and argument in the Court of Appeals for the Fifth Circuit, which is scheduled for November.
Still, coming from a panel of conservative justices whose track record under Trump showed strong support for broad presidential powers, Judge Alito’s unsigned order is a stunning rebuke of executive authority over immigration. The three progressives on the court — Justices Breyer, Sotomayor and Kagan — would have intervened to back Biden’s authority to dictate the policy in the interim.
Applicants for admission at the U.S. border are processed through either expedited removal proceedings or regular removal proceedings, and it’s up to immigration officers to make a threshold decision as to whether a particular non-citizen is eligible for the expedited route. In the Immigration and Nationality Act (INA), Congress gave DHS authority to return some undocumented migrants (called “aliens” in the statute) to “a foreign territory contiguous to the United States” on an expedited basis under narrow circumstances, such as fraud, misrepresentation or a lack of proper documentation. Migrants who are not eligible for expedited removal are put in regular removal proceedings, which involve hearings before an immigration judge on an individual’s susceptibility to deportation.
Prior to 2019 — when Trump’s DHS issued the MPP — immigration officers processing asylum seekers who didn’t qualify for expedited removal had two options: detain them in the United States or place them on parole within the United States pending their hearings. Under the MPP, Trump replaced the parole option with a new one: sending the applicants back to Mexico to wait until an immigration judge resolves their asylum claims, which can take a long time.
Trump’s MPP policy was challenged in federal court as unauthorized under the INA, a California judge halted the policy, and the Court of Appeals for the Ninth Circuit lifted that injunction because the Trump administration requested an emergency stay on appeal — precisely the relief the Biden administration sought from the Supreme Court this round.
Under Biden, DHS terminated the MPP in June, citing four primary rationales: one, the MPP does not sustainably enhance border management enough to justify its cost; two, it was designed to make processing faster, but long delays in scheduling hearings meant that some migrants were denied admission without being able even to attend their hearings in person; three, the program was a strain on limited personnel and security resources; and four, the COVID-19 pandemic compounded the problem.
Texas and Missouri sued the Biden administration, arguing that termination of the MPP violated the umbrella statute governing federal agency actions — the Administrative Procedure Act (APA) — because it failed to fully address the implications of Biden’s rescission decision, including the possible resurgence of illegal immigration, the cost to the states and other factors. Judge Matthew Kacsmaryk, a Trump appointee, agreed with the states and entered a permanent injunction forcing Biden to reimplement the MPP, and that decision is now on appeal.
The APA is a wonky but vitally prolific federal law that has stealthily made national headlines many times over the past few years. It’s why the Supreme Court knocked down the Trump administration’s attempt to require information about citizenship on the 2020 Census, for example; why it sent back to DHS for reconsideration Trump’s rescission of President ObamaBarack Hussein ObamaTop nuclear policy appointee removed from Pentagon post: report Prosecutors face legal challenges over obstruction charge in Capitol riot cases Biden makes early gains eroding Trump's environmental legacy MORE’s Deferred Action for Childhood Arrivals (DACA) policy; and why it affirmed a lower court’s injunction stopping Obama’s parallel program for parents of DACA kids, the Deferred Action of Parents of Americans and Lawful Permanent Residents (DAPA). The APA doesn’t allow courts to second-guess the merits of an agency’s policy, but does require that agencies provide good reasons; if not, a policy deemed “arbitrary and capricious” can be sent back to an agency to fill in the gaps. DHS could do that here, that is, update its memo to account for Kacsmaryk’s complaints in the hopes of passing APA muster the next time around.
This dance is similar to what happened with Trump’s initially ill-fated “immigration ban,” which placed entry restrictions on individuals from eight foreign states. A Hawaii federal court entered a nationwide injunction on the rationale that the ban was constitutionally suspect. DHS doctored up the memo, and the U.S. Supreme Court ultimately upheld the revised version.
In his denial of a stay, Alito cited the court’s decision rejecting Trump’s dismissal of DACA as justification. But Alito had dissented in part to that case, Department of Homeland Security v. Regents, on grounds that would seem to suggest he’d grant Biden’s request to stay the MPP injunction now: “DACA presents a delicate political issue, but that is not our business. [T]o the extent DACA represented a lawful exercise of prosecutorial discretion, its recission represented an exercise of that same discretion, and it would therefore be unreviewable under the [APA].”
The same could be said for the MPP — that the president’s constitutional power over enforcing immigration laws should get deference while the courts work out the legal details of the program. Moreover, there is a distinction between the DACA matter and the MPP case: While DACA involved Obama’s decision not to enforce the law against certain people, what the district court did in MPP is to affirmatively direct Biden to enforce the law in a certain way. Article II of the Constitution endows the president with the power to execute the laws. Writing for the majority in Trump v. Hawaii, Chief Justice Roberts thus criticized opponents of the travel ban as having a “remarkably cramped” understanding of the president’s authority over immigration. When the president adopts an immigration program “in the context of international affairs and national security,” Roberts wrote, “he is not required to conclusively link all of the pieces in the puzzle before the courts grant weight to his empirical conclusions.”
This is a rather different tone than Alito took this time in refusing to give Biden the benefit of the doubt by deferring to the president’s choice for the status quo pending resolution of the legality of the MPP’s termination. One can only hope that the Supreme Court majority’s wavering mindset doesn’t hinge on the political party from which a sitting president hails.
Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books "How to Read the Constitution — and Why” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.