‘Remain in Mexico’ Policy Goes to the Supreme Court

Journal Editorial Report: If Title 42 expires, even Katie can’t bar the door on illegals. Images: AP/Reuters Composite: Mark Kelly

The Supreme Court on Tuesday will hear a challenge (Biden v. Texas) to the Biden Administration’s repeal of the Trump Migrant Protection Protocols—aka “Remain in Mexico.” But the stakes go beyond the border and strike at the heart of the Constitution’s separation of powers.

President Biden on his first day in office directed his Department of Homeland Security to review whether to terminate or modify Remain in Mexico. DHS ended the policy last June. The two questions before the High Court are whether DHS followed proper administrative procedure, and whether the law lets it end the policy. The answers are no, and no.

The Trump Administration implemented Remain in Mexico in early 2019 to deal with a surge in migrants claiming asylum. Since DHS’s total detention capacity is 34,618, the government had been releasing migrants apprehended at the border into the U.S.

Remain in Mexico requires non-Mexican migrants to wait in Mexico until their asylum claims are heard. Un-noted by critics is that Congress established the legal basis for this policy as part of the 1996 bipartisan immigration reform. Sen.

Joe Biden

voted for it.

The law says migrants who are “not clearly and beyond a doubt entitled to be admitted . . . shall be detained.” That’s an order to the executive branch. But Congress also provided a safety valve if the government lacks detention capacity: “The Attorney General may return the alien” to Mexico “pending a proceeding.”

The law also says DHS can parole migrants in the U.S. “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 into the U.S. when it lacks detention space, as the Biden Administration argues. It was intended for discrete cases, namely migrants urgently needing medical care.

Texas plausibly argues that the Administration’s en masse releases violate the 1996 law. And if the government lacks sufficient capacity to detain migrants, it is effectively required to continue Remain in Mexico.

It’s true that administrations had released migrants into the U.S. prior to Remain in Mexico. But the numbers were far lower than the 757,857 the Biden Administration released between Jan. 21, 2021 and Feb. 28, 2022. Prior administrations also performed expedited deportations, which this Administration has curbed.

Texas also argues that the Administration is trying to circumvent judicial review under the Administrative Procedure Act. A district court enjoined the Remain in Mexico termination after finding DHS failed to consider states’ reliance interests, the policy’s benefits, potential alternatives and legal implications. The High Court last August upheld the injunction, citing its Regents decision blocking the Trump Administration’s DACA rescission.


Rather than return to the drawing board, the Administration appealed the lower judge’s decision on the merits to the Fifth Circuit Court of Appeals. Then days before oral argument, it released two new memos justifying its termination, which argued, among other things, that Remain in Mexico’s “benefits do not justify the costs” and was “diverting attention from more productive” border policies.

It told the appellate court its new memos superceded its old one and thus Texas’s challenge was moot and the lower court’s injunction should be vacated. Voila! All the Administration needs to do to win a case is type out a new memo. But the case isn’t at all moot, as a Fifth Circuit panel explained in ruling that the new memos had no legal effect.

“The Government’s theory of mootness would allow an administrative agency to permanently avoid judicial review by issuing an endless litany of new memos to ‘moot’ every adverse judicial ruling,” Fifth Circuit Judge Andrew Oldham wrote. “This is a game of heads I win, tails I win, and I win without even bothering to flip the coin.”

The U.S. Constitution grants 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 can’t pick and choose which laws to enforce and then claim its decisions are beyond judicial review. The Justices have a constitutional obligation to order the Administration to follow Congress’s command.

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Appeared in the April 26, 2022, print edition as ‘‘Remain in Mexico’ Goes to the Supremes.’

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