The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last night, the Supreme Court denied the Biden Administration's request to stay a lower court order requiring the federal government to reinstate the Trump Administration's Migrant Protection Protocol (MPP) policy (aka, the "Remain in Mexico" policy). Citing DHS v. Regents of the University of California, in which a majority of the Court rejected the Trump Administration's attempt to undo the Deferred Action for Childhood Arrival (DACA) policy, a majority of the Court concluded the Biden Administration was unlikely to prevail on the merits, and so left the lower court's order requiring efforts to reinstate MPP in place.
Under MPP, third-country nationals entering the United States by land unlawfully are returned to the country from which they entered (Mexico or Canada) pending completion of removal proceedings. The purported aim of the policy was to prevent third-country nationals from being able to enter (and potentially remain in) the country before the government could determine whether they were eligible for asylum or to otherwise remain in the country. Upon taking office, the Biden Administration initially suspended and then revoked MPP on the grounds that it represented a poor allocation of enforcement resources and was inconsistent with the Administration's immigration and foreign policy objectives. Five years ago, there would have been little question the Biden Administration could revoke this policy, but that was then.
After the Biden Administration ended MPP, Texas and other states sued to challenge this revocation, prevailing in the lower courts. The district court concluded that the revocation was unlawful on multiple grounds, including that it was arbitrary and capricious, and ordered the Administration to make good faith efforts to reinstitute the policy. The Biden Administration sought relief from the Fifth Circuit, unsuccessfully, before turning to the Supreme Court.
The Supreme Court temporarily stayed the district court's order, before concluding that no permanent stay would be provided. The Court's order reads:
The application for a stay presented to Justice Alito and by him referred to the Court is 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. See Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020) (slip op., at 9-12, 17-26). 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.
Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application.
As a shadow docket order, there is no written opinion (which is too bad). The citation to Regents (the DACA decision) is nonetheless telling.
When the DACA case was decided, there was some question whether the decision heralded more stringent review of policy changes generally, and immigration policy changes in particular. On the one hand, the Court made clear that a policy's potential illegality alone could not justify rescission without the consideration of various alternatives, and that any change in policy–even something as discretionary as a change in enforcement priorities–would need to account for reliance interests. On the other hand (as Zach Price noted here), portions of the opinion had a "good for this trip only" feel, leading some to hope or expect that Regents would only apply to the Trump Administration. Yet only the Supreme Court can make that call, so both Texas' briefs and the lower court opinions cited Regents extensively–apparently to good effect.
Last night's order strongly suggests Regents is the new standard, and will be applied to the Biden Administration's efforts to undo Trump Administration policies. More broadly, this seems to indicate that the executive branch no longer has free reign to change discretionary immigration enforcement policies.
I am skeptical this is a positive development. While it is good to see the Court aspire to consistency, I think the resulting legal rule is problematic. As readers may recall, I liked the DACA policy and was unconvinced it was illegal (though it would have been nice for Congress to have enacted it into law). I also found Chief Justice Roberts' Regents decision wanting. It seems to me that the executive branch should have broad discretion to set immigration law enforcement policies (at least until Congress provides otherwise), even if that results in policies I do not like.
If deciding on a clean slate, I would have upheld both the Trump Administration's DACA rescission and the Biden Administration's MPP rescission. Elections have consequences, especially in areas of law like immigration, where Congress has left the Executive Branch with ample discretion and which implicate foreign policy. But last night's order was not issued on a clean slate. If it was not enough for the Trump Administration to conclude DACA was unlawful to rescind it, because it had alternatives and potential reliance interests to consider, it's not clear to me why the Biden Administration should be able to reverse another immigration policy without an equally fulsome examination of alternatives and alleged reliance.
All of this underscores that if we are to have a rational and humane immigration policy, Congress has to step up to the plate. We won't likely get there through Executive Orders or the courts.