Supreme Court

Supreme Court Concludes Trump "Remain in Mexico" Policy Must Remain in Place

The Biden Administration suffers a significant loss on the Supreme Court's "shadow docket."

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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.

NEXT: Today in Supreme Court History: August 25, 1998

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  1. Well, elections are supposed to have consequences, but so are laws. What of the President’s duty to “take care that the law be faithfully executed”?

    Congress HAS stepped up to the plate, multiple times. You just don’t like what they did there.

    1. Since when is Trump’s Migrant Protection Protocol (MPP) policy (aka, the “Remain in Mexico” policy), “law?”

      The answer is: it’s not a law.

      Biden just needs to follow the procedure for changing policy.

      1. The APA is law, though. So are our immigration laws.

        The problem here is that Trump got dinged for not following the APA in ceasing to violate immigration laws.

        Biden’s being dinged for not following the APA in resuming violating immigration laws. That’s just a little harder to resolve, because even once he complies with the APA, he’ll still be violating laws.

        1. Brent’s comments ” The problem here is that Trump got dinged for not following the APA in ceasing to violate immigration laws.

          Biden’s being dinged for not following the APA in resuming violating immigration laws. That’s just a little harder to resolve, because even once he complies with the APA, he’ll still be violating laws.”

          An important distinction which the pro- immigration / anti-follow the statute advocates fall to grasp.

        2. The issue here is the MPP program (i.e. the so-called Remain in Mexico Program). Are you suggesting that – APA issues aside – not having that policy would be (and previously was) a violation of our immigration laws?

          If so, I’d be interested in your reasoning. How would it be violating our immigration laws not to require non-Mexican asylum seekers to wait in Mexico while their asylum cases were adjudicated? That is to say, how would it be violating our immigration laws to allow such asylum seekers to remain in the U.S. (e.g. in detention or having been issued a notice to appear) while their asylum cases were adjudicated?

          Perhaps the MPP program doesn’t itself violate our laws. But even if it doesn’t violate our laws, that doesn’t mean it is required by our laws. We may, under our laws, be allowed to require such asylum seekers to wait in Mexico; but I don’t see how we are required by our laws to do that.

          1. No, I’m suggesting that the problem is that what Biden is replacing the MPP program with isn’t another reasonable approach to enforcing immigration laws, but instead a decision to fail to enforce them.

            The MPP program dealt with the problem of hearing no-shows by requiring those who entered illegally to wait for the hearing outside the US. This was pretty darned effective in preventing illegals from just disappearing into the US. The program caused illegal entries to drop dramatically, by denying them what they’d sought to obtain illegally: Presence in the US.

            Biden’s replacement for the MPP program is extracting a pinky promise to show up, and then busing the illegals further into the country, where they are dropped off, and disappear. It’s not an alternative enforcement mechanism, it’s a non-enforcement mechanism.

            Here, you can see for yourself what happened with illegal border crossings when the policy was ended. That’s not a change of enforcement mechanisms, it’s a termination of enforcement.

            1. That is a mighty convincing graph, Brett

            2. I’m generally aware of what’s happened with (so-called) encounter numbers. I wasn’t suggesting that the MPP program wasn’t effective or that it was otherwise bad policy. My question related to what’s required by our laws. We saw spikes in encounters under President Trump, that didn’t mean that what President Trump’s administration was doing was in violation of immigration laws.

              Our laws don’t require the use of §1225(b)(2)(C) to return aliens to contiguous territories. It certainly doesn’t require a program that says all aliens of a certain class will be so returned. Even without such a program, we can make case-by-case decisions to return aliens if that’s needed.

              The pinky promise and release (or busing) you refer to is allowed by our laws. Immigration officials are, under some circumstances, allowed to parole most aliens who would otherwise be detained under §1225. Not having sufficient facilities to detain all of them would be a reason why officials were allowed to parole certain aliens.

              Aliens have been paroled under every administration. Has that always been illegal? Have we always been required by our laws to either (1) detain all aliens subject to status proceedings or (2) make them wait in contiguous territories? I don’t think so.

              I get not liking the way immigration matters are being handled under the present administration, or under previous administrations. But that doesn’t mean that, e.g., paroling large numbers of aliens is a violation of our laws.

          2. From the 5th Circut decison:

            Based on those conclusions, the district court “permanently enjoined and restrained[DHS] from implementing or enforcing the June 1 Memorandum” and ordered DHS “to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.”

            If you are releasing into the US people for whom the law requires “mandatory detention”, then you’re violating the law.

            The fact that they got a friend dishonest judge to support them in ignoring the “mandatory detention” part doesn’t make it any less illegal, it just means they got away with it

            1. Judge Kacsmaryk may be right on APA grounds. But once the MPP program is rescinded in compliance with the APA, the administration will be allowed under our laws to not adhere to it – his further edict notwithstanding.

              Immigration officials are allowed to parole most aliens who would otherwise be subject to detention under §1225. That isn’t illegal. There are some aliens for which our laws don’t allow parole – e.g., those subject to detention under §1226(c). Is the contention that those aliens are being paroled or would be paroled in the absence of the MPP program?

              The point is, so-called mandatory detention (under §1225) isn’t really mandatory detention under our laws. A separate provision of law gives immigrant officials parole authority. To the extent Judge Kacsmaryk presumes to make such detention (or in the alternative contiguous territory return) required, he’s effectively trying to rewrite our laws.

              1. “until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.”

                That doesn’t block them from exercising any legitimate powers they have under the law.

                It just blocks them from refusing to create sufficient detention space, and then using that refusal as an excuse to ignore the law.

                You’re not going to convince me that such games are legitimate. Common? Yes. i understand the law ignoring criminal nature of our “governing class”. But legitimate? No.

                Which ties into a repeated refrain in the Circuit Court opinion:
                “[A] party may not satisfy the irreparable harm requirement if the harm complained of is self-inflicted”

                I’ll close with what the Circuit Court had to say about this:
                And far from ordering the Government to detain “every single person described in 8 U.S.C. § 1225,” Decl. of David Shahoulian ¶ 5 (Aug. 16, 2021), the district court specifically acknowledged that the Government has other options. Under § 1225(b)(2)(A), which provides the statutory authority for MPP, an alien arriving on land from a contiguous foreign territory can be returned to that territory. See D. Ct. Op. at 43 & n.11 (noting this discretion). Under 8 U.S.C. § 1182(d)(5)(A), DHS can parole an alien into the United States “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” (Emphasis added);see D. Ct. Op. at 43 & n.11 (noting this discretion). Under 8 U.S.C. § 1226, DHS can release on “bond” or “conditional parole” an alien arrested on a warrant and detained “pending a decision on whether the alien is to be removed.” See also Stay Mot. at 12; D. Ct. Op. at 51 (noting this discretion). Last but not least, of course, the Government can choose to detain an alien in accordance with § 1225. See D. Ct. Op. at 43 (noting this discretion). What the Government cannot do, the district court held, is simply release every alien described in § 1225 en masse into the United States. The Government has not pointed to a single word anywhere in the INA that suggests it can do that. And the Government cannot claim an irreparable injury from being enjoined against an action that it has no statutory authorization to take.

      2. Immigration law is “law”

        Allowing people to illegally cross the border, get caught, make up a BS “asylum” claim, and then get released into the interior, never to be seen again, is a violation of the President’s duty to take care that teh laws be faithfully executed, even the ones he disagrees with.

        MPP was about making sure that immigration law is actually enforced. Dumping it is about making sure the laws on the books are not enforced.

        Which you understand.

        Which is why you oppose MPP

        1. Greg J, your notion is that faithful execution of law depends on violation of due process on asylum claims?

          1. Precisely what “violation of due process” are you alleging exists within the MPP?

          2. Nope.

            No valid asylum seeker would pass through Mexico (or Canada) on their way to the US. Remember the ship of Jews pre-WWII, that no one would let in?

            Those were asylum seekers. They were looking for any country that would take them. Not a rich county to take them.

          3. “violation of due process on asylum claims?”

            What “due process right” does an asylum seeker have to be in the US, living freely, while their claim is being processed / adjudicated?

            I’ll wait.

            You’re encouraged to quote any US law that says that “making a claim of asylum means you get to come and live in the US until your claim has been rejected and all appeals have be squashed.”

            Like I said, I’ll wait

          4. From the 5th Circuit refusal to enjoin the District Court ruling:

            The statutory authority for MPP is found in 8 U.S.C. § 1225(b)(2)(C), which authorizes the Government to return certain third-country nationals arriving in the United States to Mexico or Canada for the duration of their removal proceedings under 8 U.S.C. § 1229a

            So you might want to start there with your search for “due process violations”

      3. But Obama’s DACA policy actually flouted the law, and yet Trump could not restore adherence to the law without following the APA.

        Adler is dead wrong here though:
        “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.”

        Congress is as dead a constitutional institution as the 3rd or 9th amendment. The idea congress could pass DACA reform, set refugee admission policy, or even pass an eviction moratorium is absurd.

        Having law professors or the courts advocating for constitutional unicorns like congressional lawmaking is embarrassing.

    2. Congress has not stepped up to the plate. They have refused to take the tough votes needed on immigration. In doing so they have deferred to the executive.

      1. Translation: They have refused to grant citizenship to every 85 IQ mestizo who wants it.

      2. To quote Rush: “If you chose not to decide, you still have made a choice.”; Refusal to enact a law is a valid legislative action.

        1. Just to clarify, that was the band and not Limbaugh.

        2. That would be the case if you decided not to make a decision, but that not what always happen in Congress. I am not bothered by the idea of saying I don’t think a decision is necessary as I am by the cowardice of not making a decision because it means going on the record. Our Congress cedes far too much power to the executive because of the refusal to do their job and make decisions. The cowardice is often compounded by then complaining about the executive branches decision. Decisions that they have the authority to make and then choose not to make.

          1. It must be presumed to be what’s happening, though: The legislative power is reserved to the legislature, and failure to pass a law is as much a legislative ‘act’ as passage of a law. Treating Congress not passing a law as ceding jurisdiction is just an excuse.

            Congress didn’t change immigration laws because changing them would be politically unpopular.

      3. Translation: Congress hasn’t changed the law the way I want, therefore the President should be free to ignore it

  2. Kudos to Alder for bringing to light a result he does not agree with.

    Too bad the same cannot be said for Somin, who decided to studiously ignore the subject.

    However, the main point is, if we refuse to protect our boarders, it tell the world we have nothing to protect. It is a sad day when people who have no legal right to be in the US, get more sympathy than those who have the legal right of citizenship.

    1. “Too bad the same cannot be said for Somin, who decided to studiously ignore the subject.”

      I look forward to reading your blog, and claiming that when you don’t write what I want, that you are ignoring the subject.

      “It is a sad day when people who have no legal right to be in the US, get more sympathy than those who have the legal right of citizenship.”

      Pulled that straight out of your ass, eh?

      1. Complaining about immigration law is Somin’s beat though.

      2. I am not a lawyer. However, I do follow this blog. And Somin has a, shall we say, habit of crowing about immigration decisions that he likes and simply ignoring ones he does not.

  3. “It seems to me that the executive branch should have broad discretion to set immigration law enforcement policies (at least until Congress provides otherwise)” Except Congress had already provided and set what the law was. The entries were illegal under adopted law.

    1. You didn’t read the post before commenting. This was not about an act of Congress.

      1. From the post: “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.”

        See that word, “unlawfully”? That’s because the policy was requiring people entering contrary to an act of Congress to leave the country and apply from outside it.

        1. That’s some impressive flexibility Brett, and yet completely wrong.

          It was about rescinding an executive order attempting to undo a different executive order. Neither the MPP nor Biden’s decision to cancel it were acts of Congress, or laws.

          1. No, but the MPP policy was an exceptionally effective effort to enforce an actual act of Congress, while it’s repeal was an equally effective effort to leave the same act unenforced.

  4. To begin with, I think that courts should construe statutory terms like “any party” to have their plain, ordinary meaning, and not look to legislative history, purpose, etc. where the plain meaning is unambigous and not obvious nonsense. While it may be true that Congress acted following a specific 9th Circuit decision entitling a criminal alien to sue for early deportation as a way out of jail, it was entitled to use language covering a broader set of circumstances. And it did. In my view, the State of Texas is a party, and a statute saying no party has a right to sue means the State of Texas has no right to sue. The specific statute trumps any more general one.

    Moreover, if I were to apply soft interpretive rubrics, I would apply the one that courts don’t get involved in foreign policy unless Congressional intent for them to get involved is clear.

    Here, we have a clear Congressional statement that courts should stay out. Rather than apply the plain meaning, rather than apply the rubric that courts should avoid interfering with foreign policy, the courts instead find a pretext to worm their way into something that just plain isn’t any of their business.

    I said that courts shouldn’t apply the APA to DACA because Congress made enforcement of alien removal a matter of executive discretion, and that decision (together with the special foreign policy context which is especially left to the political branches) should control.

    I say the same thing here.

    1. I agree with Professor Adler that the Regents decision was also “wanting.” i didn’t think the Regents had a right to sue over deportation enforcement decisions either.

      1. That’s nice

        The decision is on the books. It helped your side

        Now your side is going to pay for that “win”.

        Was DHS v. Regents of the University of California a horribly bad ruling? Yes.

        Should every single person on DACA have been expelled from the US, as well as every single one of their illegal family members? Yes.

        Did left wing judges block that? Yes

        Should the Left now pay horribly for that? Yes.

    2. I also find the whole concept of reliance interests in foreign policy very inappropriate. Was Germany entitled to sue because, after two and a half years of war, it was entitled to rely on the United States not invading it? Was it entitled to rely on the United States’ movements showing the invasion would be through the Pas de Calais and not through Normandy?

      Sometimes surprise – getting other countries to rely on your doing something and then suddenly doing the opposite – is part of foreign policy, which isn’t always nice. Or fair.

      1. Or a legitimate ticket to the Supreme Court docket, shadow or otherwise.

    3. The APA was created for matters of executive discretion like DACA. The courts have taken an existing mechanism to deal with executive branch department policies and applied it to migration policy. There is nothing that exempts migration from the Administrative Procedures Act.

      Congress is free to enact something/anything that clarifies the situation. Until that happens, lawsuits have the steering wheel.

      1. Well, 8 USC Sec 1231 (a) (4)(D) says “No cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien.”

        What did you say this lawsuit was about again? What was it seeking to do?

    4. That was a great story, up until DHS v. Regents of the University of California.

      Now it’s unadulterated BS

  5. If I understand the Reagents and this latest decision, the Court is not saying the executive branch can not change the policy, but that it must do so using proper procedures. This then allows a previous administration the power to tie up its successor and force them to steps through a number of bureaucratic procedures before changing policy. If this is the case, no administration can truly say I will change a policy on day one of my administration.

    1. ” If this is the case, no administration can truly say I will change a policy on day one of my administration.”
      I do not see what is wrong with that. The “new guy” still has to play by the procedural rules.

      1. I wonder about the possibility of using a “shadow” administration to conduct the procedures prior to arriving in office, so that they can be swiftly implemented.

  6. Absolutely terrible decision, IMO. Nothing to do with the policy, either.

    As many other legal scholars from across the spectrum have noted, the main issue with this decision is that it has a massive impact on foreign policy. That Remain in Mexico policy? It requires … cooperation. Cooperation of a foreign power. For purely ideological reasons, a Court (countenanced by the 5th and now SCOTUS) has demanded that an administration undo their prior negotiations (and/or promises) and reinstate a policy; presumably with the cooperation of the foreign government.

    Short version- go on bended knee to Mexico and make this work. For reasons.

    What is troubling is that this, again, comes from an injunction (without full briefing) and a poorly-reasoned decision from the lower court with a judge that does not seem to understand immigration law very well. Even the SCOTUS order, which explicitly refers to Regents (also, IMO, not a good decision) seems to only require a better memo since it doesn’t even touch the terrible aspects of the lower court decision, but there are no particulars as to what would require a better memo. Not to mention is leaves the appellate decision in place – so who gets to determine if the negotiations with Mexico (foreign policy) are in “good faith.” The lower court judge? Who seems to have … certain issues?

    Look, I don’t much think that the “sky is falling,” approach I’ve seen some people take with this decision are accurate. Eventually, things will get done. Life will go on. And so on. But this is an absolute mess, and it portends future messes.

    1. The left opened the door to this crap by claiming that the APA prevented Trump from ending DACA, putting a citizenship question on the Census, and all sorts of other things.

    2. “Short version- go on bended knee to Mexico and make this work. For reasons.”

      Shorter version- Hey Mexico bend over and take with no lube.

      If you don’t think the US can tell Mexico this is our policy no matter if you like it or not you are living in a dream world. The third largest slice of the Mexican economy is remittances from the US, simply putting a 10%, or 50% tax, on that would force Mexico to to the US’s bidding; and that is just for starters.

      1. Normally, I would agree with you. What the US wants from Mexico, they usually get.

        But here’s the thing. As much as you like your colorful fantasies (did they bend over and pay for the wall, too?), there is a certain weakness is negotiating when the other side knows you have to do it.

        So, yeah, if we want to keep a policy that requires a lot of work from Mexico (hence … remain in Mexico), then they might just say, “No habla ingles.”

        1. “did they bend over and pay for the wall,”?

          Um, were you completely ignorant about foreign policy during the Trump years?

          Mexico spent and bunch of money and effort blocking Central American would be illegal “immigrants” to the US from crossing their border and heading to the US border.

          Thus building a wall that neither Congress not the Courts could stop.

          So yes, Mexico built a wall to protect our border (those Central Americans weren’t planning on stopping in Mexico), and they paid for it

        2. They could have been made to pay for it, if Congress had wanted it.

          The dynamic here is that a working majority of Congress wants high levels of illegal immigration. The Democrats for accelerated demographic change in the country, both parties because business lobbies like the cheap, easily intimidated labor keeping wages low.

          BUT, they can’t, for political reasons, own up to this. The Republicans, especially, because their base is harder core about illegal immigration. But even the Democrats see immigration ‘reform’ as politically toxic.

          So they starve immigration law enforcement of resources, cap the number of immigration judges, so that the border will inevitably be leaky.

          Trump I guess didn’t see that coming, that ‘his own’ party would refuse to let him have border wall funding. You can see that in immigration statistics, illegal immigration initially cratered when Trump came in, because the illegals figured there wasn’t a point given his enforcement promises. Then Congress made it clear they weren’t going to fund enforcement, and illegal immigration started going up again.

          But with MPP Trump found an effective blocking mechanism that didn’t need Congress to fund it, and the rate went way down again, and stayed there until he lost the election and Biden took over.

          1. “They could have been made to pay for it, if Congress had wanted it.”

            Brett- I know you’re not stupid. And that’s … that’s stupid. Everyone who had half a brain knew that Trump was lying about Mexico paying for the wall (remember the whole, “Take him seriously, but not literally” or some other nonsense like that).

            And, unsurprisingly, Mexico didn’t pay for the wall. There was never even a serious proposal put forth by the Administration for any mechanism to do so. Just occasional bleatings from (usually unsourced) people in the Administration who would say, “Remittances!” to keep the crazies thinking that it was every anything but a joke.

            This is makes you look profoundly unserious. And it has nothing to do with the actual policy implication (is a wall good or bad) or the symbolic meaning of “A WALL” as opposed to the actual effect, or the cost-effectiveness of it as opposed to other policies- all of those are different questions. But blaming Congress, now, for what was always recognized as a lie (sorry … political hyperbole in advance of a cause … better?) is rank stupidity. Congress has enough to answer for without being the scapegoat of revisionist fantasies.

            As for your broader policy beliefs, they are also incorrect in the particulars. Here’s the short version (from approximately the 70s on)-
            1. The GOP elite and the business wing of the GOP is, and has always been, in favor of immigration; both legal and illegal. Because economics.
            2. The Democratic elite, and the liberal wing of the Democratic party is, and has always been, in favor of immigration, both legal and illegal. Because that’s a respectable, non-nativist position that gets them invited to cool parties and NPR fundraisers.
            3. However, substantial parts of the base of both parties is against immigration; both the traditional GOP “conservative values, MUH ‘MURKIA” base and the traditional Democratic “union jobs” base.
            4. Both sides, to varying degrees over time, had to publicly be both for and against immigration at the same time due to competing demands.
            5. Trump, love him or hate him, simply made opposition to immigration the most salient point of the campaign- making this a completely partisan issue and, for the most part, turning immigration into a test of partisan loyalty (see also masks).

            1. 1) You just agreed with me.
              2) You just agreed with me.
              3) You just agreed with me.
              4) You just largely agreed with me.
              5) You just agreed with me.

              Apparently our only real point of contention is that you assume Trump must have been lying about intending to make Mexico pay for the wall, while I assume he had in mind the technique for that everybody had been discussing: A tax on remittances.

              1. So… stupid it is. Oh well.

                I appreciate the clarification.

          2. There was a proposal to fund the wall in exchange for writing DACA into law which got a majority in the Senate (but not enough to overcome the filibuster) even after Trump promised to veto it. I’m not sure whether Trump lacked the negotiating ability to get funding for his border wall through Congress, or just didn’t care enough to get it done, but he never signed off on a deal.

            https://thehill.com/homenews/senate/374073-senate-rejects-centrist-immigration-bill
            https://www.govtrack.us/congress/votes/115-2018/s35

            1. The problem with such “centrist” immigration bills is that they always include poison pills.

              By the way, how the heck did you manage to get two links in your comment without ending up in moderation hell?

            2. Yeah, there was never any issue about getting Congress (who theoretically controls the purse) to fund it. Congress, of course, is not Mexico. There have been other issues regarding the executive’s choices to … redistribute money … for the wall.

              All of this is orthogonal to the original claim. It is truly bizarre to me that some people feel the need to retcon history.

              Was Trump lying when he claimed Mexico would pay for it? At some point, yes. Or maybe it was just a feel-good slogan by then.

              But at the beginning?
              Either Trump “knows how things work” and was lying; or
              Trump had no idea how things work, and thought this was something that could be done; or
              Trump didn’t really care one way or the other, and just said whatever sounds good for a political slogan- he’s gonna build the wall, and make someone else pay for it!

              Seriously though, it’s like someone campaigning on “The Other Guy” tax. You, you will pay nothing, ever, in taxes. The other guy will pay taxes. But not you.

              Sounds great! Doesn’t work.

    3. Wah, wah, wah

      All that was true for 90%+ of the “judicial” decisions blocking Trump’s policies.

      Nevertheless, tehy were blocked.

      What goes around, comes around.

      If you want to see the fundamental stupidity of the people on the Left, it is on display right here:

      We’re going to lose, let’s completely change the rules!
      Wah, the Republicans are now doing to us what we did to them! That’s so unfair!

      Over, and over again

    4. Wouldn’t you agree that this is basically an extension of Regents?

      I agree, BTW, that this decision is ridiculous. The executive should have room to maneuver here, and to deny them that authority for arbitrary reasons is dumb.

      Why can’t the executive be like, hey, we considered it, we found the concerns stupid, so we moved on? This standard makes it take very long to do anything without many court decisions.

      We have elections. We have notice and comment procedures. We give people the right to respond to things they don’t like. And if you lost, you cant come back and say, but you didn’t consider my plight. We did, you lost, and let’s move on.

      It also, like I have my personal dealings with the US immigration system. As bad as the executive making random decisions causing significant annoyance is, it is worse with, executive making random decisions, random district courts making random decisions, back and forth … like it is impossible to understand anything from that.

    5. This is a big reason why courts have always deferred to the political branches on foreign policy issues even there isn’t a statute explicitly saying to do that.

  7. Generally agree with this argument, that the Executive should have free “rein”. (Lawyers are supposed to be fussy about words, aren’t they?) Of course, waiting for Congress to “step up to the plate” on immigration is like waiting for Godot, only less exciting.

    1. Congress long ago stepped up to the plate, even if Adler and Somin don’t like what Congress did and didn’t do there.

  8. I agree that generally this should be a policy decision that’s up to the President and that “reliance interests” shouldn’t be part of the consideration. Maybe certain individuals could bring it up if they could show a particularized reliance, but not as just a general policy control. But it’s hard to have any sympathy for the President getting his policy overturned when he and his party used this weapon so strongly against the last President. Make him follow the same rules he was forcing on others.

  9. Liberals sowing: Haha f**k yeah!!! Yes!! Liberals reaping: Well this f**king sucks.

    1. Turnabout is fair play = endless APA challenges to policy changes

      That is the new reality. We all better get used to it.

      1. It did seem a bit much to require Trump to comply with the APA in repealing DACA when DACA hadn’t been adopted in compliance with it in the first place.

        But, yes, turnabout. I really thought the APA challenges were going to prove to be TrumpLaw, and vanish when he left office.

        1. If RBG hadn’t died, and ACB wasn’t on the Court, it would have all gone away. Because Roberts has no integrity or honesty

          But with 5 votes for doing unto the Left what the Left did to the Right, Roberts is willing to go along

          1. I just hope that’s true for the eviction moratorium and the NYSPA case in the fall.

            Every day, I thank my lucky stars that RBG is dead. I would have loved to see someone wrap her wretched body in pork fat before her burial.

            1. I’d personally rather she’d had a long and pleasant retirement. I feel no joy in her death.

              1. Yeah, well, she wasn’t going to retire. So the only way to be rid of her was her dying.

  10. I find Supreme Court orders like this, without opinions, but with findings that the president “failed to show a likelihood of success” on his claim that his actions were “not arbitrary and capricious,” to be constitutionally disquieting. In spite of the double negatives, one branch of government is invalidating another branch’s actions as arbitrary and capricious without a hearing before that branch and without a reasoned opinion.

    Marbury v. Madison certainly does not explain this, since this isn’t a constitutional case.

    1. Could you point to your posts where you complained about 9th Circuit District Court judges enjoining Trump’s “Muslim Ban” and other immigration policies?

      No?

      Then you’re a bit late to the party, pal

    2. JN,
      That is the way the system works. Why disquieting? Mr Biden has an easy recourse just follow the APA step-by-step.

  11. The idea that the executive can’t reverse the discretionary policies of the previous administration is, of course, ludicrous from an originalist constitutional perspective. But so is nearly everything about our federal government today. Stare decisis and all.

    1. No one said that the executive can’t reverse the discretionary policies of the previous administration. But there are procedural rules for doing so.
      What does an originalist perspective have to do with somethig so down in the weeds?

      1. “What does an originalist perspective have to do with somethig so down in the weeds?”

        Everything. Just for example, the Constitution did not originally grant Congress (i.e., the federal government) power to regulate immigration.

        More to the point, the law-making power that administrative agencies now have is unconstitutional, notwithstanding the modern consensus that it’s pragmatically necessary. See e.g. Philip Hamburger, Is Administrative Law Unlawful? Additionally, the President has the sole legitimate power to direct such “administrative” matters under the Constitution, which are really executive matters. But today we have a fourth branch, an unseemly growth upon the politic, like a malignant tumor which has become bigger in size than the dilapidated organs it feeds on put together. See each of the countless alphabet soup agencies promoting a myth of their “independence,” an unconstitutional idea by definition.

        So then you get to this issue here of what level of scrutiny the actual judicial branch ought to apply in reviewing the administrative branch’s exercises of usurped lawmaking and judicial powers, with reference to vague and subjective words like “arbitrary and capricious” as well as a host of judicially invented notions. Where to start? I don’t know.

  12. How many times does it need to be said Congress has passed laws about illegal aliens, using that exact term, entering the US. Both Obama an Biden tried to use workarounds and the courts said ‘nope, not buying that’. Plain and simple what the law is, and the executive branch has no power to ignore those laws.

    1. Oh! the Executive has the power, which they demonstrated. You meant that they do not have the authority.

  13. 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.

    HAHAHAHA

    “All of this underscores that if we are to have a rational and humane immigration policy, Congress has to step up to the plate.”

    A rational and humane immigration policy is one that blocks almost all unskilled immigration, to protect lower skilled Americans from having their ability to make a living destroyed.

    Because the only legitimate top priority for American law is the welfare of Americans.

    And when you have to chose between actually helping those worse off get better and better paying jobs, vs. the desire of the better of not to have to pay as much, a humane policy supports the former.

    The rules on “family reunion” should be simple:
    1: The only people eligible to bring family members over on a “family reunion” policy are people who themselves legally immigrated to America.
    Did you move here to build a better life for your family, get a job, work your way up, and now want to bring them over?
    Great, you get to bring a defined set of them over.

    Did you get born in the US / come to the US on someone else’s “family reunification”? Glad you’re here. but you don’t get to bring anyone else over.

    1. Either way, family reunion should be limited to spouses and minor children. Not adult parents who immediately go on SSI and Medicaid, not adult siblings, cousins, or other third world filth.

      1. Remind me what you do for a living?

        1. I’m not sure the relevance, but I’m an ex attorney now working in financial services.

    2. “Because the only legitimate top priority for American law is the welfare of Americans.”

      No one disagrees with this. The difference is, if someone comes to this country and makes a living from their own hard work, I, as well as most people, consider them Americans, and the only reason not to appears to be fairly racist.

      And preventing an American from seeing their family is bad for Americans.

      Look, if you have legitimate security concerns, fine. But this rethoric doesn’t reflect legitimate concerns, it reflects xenophobic ones.

      1. Our policy of massive amounts of immigration (not to mention de facto open borders outside of some Trump efforts) amounts to a $500 billion annual wealth transfer from poorer Americans to richer Americans. https://www.politico.com/magazine/story/2016/09/trump-clinton-immigration-economy-unemployment-jobs-214216/

        1. Oh, look, you found the one economist who makes such a claim, and will pretend that anyone else agrees with him.

      2. Someone coming here and working hard doesn’t make them an American. Assimilating to our culture, following the rules, and taking the oath of citizenship makes them Americans.

        And they can “see” their family all they want. Just not necessarily in the U.S., at our expense.

      3. No one disagrees with this. The difference is, if someone comes to this country and makes a living from their own hard work, I, as well as most people, consider them Americans, and the only reason not to appears to be fairly racist.

        1: You’re not an American if you’re here illegally. Then you’re a foreign invader.
        2: So it’s “racist” to think that American blacks, Hispanics, and whites who don’t have college degrees shouldn’t have to compete for jobs with foreign invaders who also don’t have college degrees?
        That’s an interesting dictionary you’re using. (Trump got to celebrate having the lowest unemployment rates for black Americans in the history of tracking that number, because his policies decreased the number of foreign invaders illegally competing against those black Americans for jobs)
        3: Being a country means we have, and should have, the power to decide who can live here, and who can join the “club” called “Americans.”
        As a matter of law we’ve chosen a different rule than the one you want. Which is our right.
        When you argue for ignoring the law because you don’t like it (not arguing for changing the law, and following it until you win, but arguing for just ignoring the law), you establish yourself as a domestic enemy of the US Constitution, and an all over bad human being.

        And preventing an American from seeing their family is bad for Americans.

        By all means, go on a trip and visit them. You just can’t bring them here, and make them a burden on the rest of us

  14. “It seems to me that the executive branch should have broad discretion to set immigration law enforcement policies (at least until Congress provides otherwise)”

    No no no. Immigration law is written by Congress. If Congress has not written a law you like, tough tittie. This is exactly what Obama said – Congress would not give him the law he wanted, so he would create the law himself. When the separation of powers is violated in this way, the Constitution – and the government itself – is overthrown. We are a nation of laws, not administrative regulations.

    1. The problem with your argument is that Congress specifically gave the President broad discretion over immigration decisions. That’s the law it wrote. It also wrote a law saying 3rd parties who don’t like what the administration does with its discretion can’t sue over it.

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