The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My initial reaction to the Supreme Court's decision denying the Biden Administration's to preserve its repeal of the Trump Administration's Migrant Protection Protocol (MPP, better known as "Remain in Mexico") policy was that this decision logically followed from the Supreme Court's decision in DHS v. Regents of the University of California. It seems to me the two decisions reflect a new standard for judicial review of discretionary policies in the immigration context, and that this is not a positive development.
Over at Notice & Comment (a must-read for the AdLaw interested), Professor Zach Price offers a similar assessment with which I generally agree. A taste:
Like DACA, the Remain-in-Mexico policy should have been revocable with little or no explanation. Not only is the authority to return migrants discretionary, not mandatory, but returning them in large numbers to a neighboring country could raise delicate diplomatic questions that require a variable policy over time. Absent a more specific statutory mandate, courts have no business freezing executive policies like this in place.
In the waning days of the Trump Administration, however, Texas entered an agreement with the federal government guaranteeing advance notice prior to any rescission of Remain-in-Mexico. So, when the Biden Administration nevertheless rescinded the policy, Texas and Missouri sued, and a district court enjoined the administration from terminating the policy. Invoking UC Regents, the Fifth Circuit affirmed. It reasoned that, as with the Trump Administration's explanation for the DACA repeal, the government's explanation of the policy change showed inadequate consideration for Texas's reliance interests and other potential negative effects of the policy change. In a terse order, the Supreme Court denied the government's request for a stay pending appeal. Citing UC Regents, the Court declared simply that "[t]he 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."
As should be clear, both UC Regents and the Fifth Circuit's Remain-in-Mexico decision strike me as erroneous. But they are flawed in parallel ways
Not all concur in this view, however. Professor Ben Eidelson has offered this response to Prof. Price. Prof. Eidelson writes (in part):
while the two cases may appear alike—in each, the Court demanded a better explanation for the administration's rescission of a discretionary immigration-enforcement policy—the legal merits are very different. So, as I'll explain here, no rule of consistency requires those who supported the Court's decision blocking the DACA rescission to view this latest order as relevantly alike. And far from being logically inevitable, the new majority's refusal to distinguish between the two cases was a regrettable and entirely avoidable mistake. . . .
To the extent that Regents does bear on the Remain-in-Mexico case, it is only because of the Regents Court's alternative holding—namely, that Secretary Duke had "failed to address whether there was 'legitimate reliance' on the DACA Memorandum." Again, it bears emphasis that one could think this second holding was entirely misguided and still appreciate that the proper outcomes as to the DACA and Remain-in-Mexico rescissions were different. Even if Regents' "reliance" analysis did support the result in the Remain-in-Mexico case, therefore, it would still be wrong to say that progressives are somehow paying the fair price for persuading the Court of the DACA rescission's illegality. At most, they would be paying a price for the Court's inclusion of an unnecessary alternative holding in its Regents opinion.
But even that isn't right, because the cases are eminently distinguishable from the perspective of Regents' second holding, too. The key point is that, in the DACA case, the operative decision memorandum totally failed to acknowledge or discuss any real-world consequences of the rescission. (A later memorandum was dismissed, rightly in my view, as a post hoc rationalization.) That disregard of consequences is just what one should expect in a decision predicated solely on a claim of legal compulsion: By the lights of the agency's own reasoning, the real-world effects were irrelevant. So there was no indication that the pros and cons of rescinding DACA, as a matter of immigration policy, had been considered at all. And if one took the agency's own explanation seriously, one would have to assume that they had not been.
For those interested in these questions, both essays are highly recommended.