Administrative Law

Did the Supreme Court's DACA Decision Lead to the Biden Administration's "Remain in Mexico" Defeat?

Professors Zachary Price and Benjamin Eidelson offer competing takes.


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 So, when the Biden Administration nevertheless rescinded the policy, Texas and Missouri sued, and a district court enjoined the administration from terminating the policy.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.

NEXT: President Biden Threatens To Sue Over S.B. 8

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  1. Thank you.

    My initial take on the issue was similar to the view espoused by both you and Price.

    But I do think Eidelson has a point.

    Which brings up the question- what happened? I rarely do this, and hate to do so now, but I think this might be instructive:

    Biden v. Texas: Breyer, Sotomayor, Kagan would have granted the application.

    Regents: Roberts, Ginsburg, Breyer, Kagan, and Sotomayor were in the majority.
    Now, look at the opinion by Thomas (joined by Alito and Gorsuch). It explicitly states that the biggest problem with the majority’s holding is that it creates perverse incentives, and would allow an outgoing administration to bind an incoming administration.

    And then, a switch. Is it because of the great amount of respect shown for precedent by, inter alia, Justice Thomas?

    Or is it because a group of Justices wanted to prove a point?

    ….I have my suspicions.

    1. It’s amazing how all you lefties “believe in precedent”, only until it bites you.

      “It explicitly states that the biggest problem with the majority’s holding is that it creates perverse incentives, and would allow an outgoing administration to bind an incoming administration.”

      Yep. And the majority went with their garbage ruling away.

      So now that majority gets to pay for their garbage ruling, by having their precedent used in ways they don’t like.

      Because that’s what new precedents do: they establish new rules that everyone is supposed to follow.

      The dissent says “if you pass this, it will make this new change.” they pass it. Then a situation comes along where the dissent’s prediction has a chance to come true.

      You can not reasonably attack the former dissent for making sure that their prediction comes true.

      We, OTOH, can quite reasonably attack former members of the majority, who switched to the dissent on this one, as being unprincipled and morally wretched piles of sh!t.

      Because that is what they are, voted based on nothing other than their personal political desires.

  2. The Court simply saying “[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” is too vague. It ought to have to spell out just what Biden should have explained in his order that would make it sufficient.

    This is the same situation that cut in the other direction when SCOTUS struck down President Trump’s “travel ban” order, and indeed if the Court had upheld Biden’s order I would have expected them to explain to the rest of us the difference between the two.

    In both cases the Court ought not simply overturn an executive order as “arbitrary” because it is unexplained, without first giving the president a chance to add the needed explanation to it.

    1. Too late.

      you don’t get to say, “gosh, now that the other side can’t benefit from it, we really should have done X, so we’ll do X going forward.”

      No, you did Y to the other side. And now we’re going to shove Y down your throat, as hard as we can, as often as we can.

      Because no rule that doesn’t bind you, will ever bind us

  3. I would say DACA can absolutely be distinguished from the stay in Mexico rule.

    DACA represents a decision to systematically leave unenforced a federal statute. Not merely occasional use or prosecutorial discretion, but systematic and organized refusal to enforce.

    The stay in Mexico rule represented a way of enforcing a federal statute. As I believe was noted in court, the law actually does demand that people entering the country illegally be detained, and in the absence of sufficient resources to detain all of them, returning those who couldn’t be detained was a way of complying with the law. While ending the policy inevitably led to massive numbers of illegal aliens NOT being detained, in defiance of the law.

    The former ran contrary to statutory law, the latter was aligned with it.

    Surely in a court of law, this is a relevant distinction?

    1. That’s just not true, Brett. There is nothing in federal law requiring the detention of people in a foreign country; I am sure you understand why if you think about it for even a second.

      If you want to say, “These things are different, in that I like one and don’t like the other,” that’s fine. But your purported distinction has the dual distinction of being both untrue irrelevant.

      1. “There is nothing in federal law requiring the detention of people in a foreign country;”

        Never said there was.

        There’s something in federal law requiring the detention of people caught illegally entering the country. Expelling them from the country is a legal alternative to this, so the remain in Mexico rule was consistent with statutory law.

        Ending it inevitably resulted in the capacity to detain being exceeded, with ICE routinely releasing, rather than detaining, (As the law demanded!) the majority of people caught illegally entering.

        Here’s the lower court ruling that imposed the injunction the Supreme court restored.

        Quoting: “Section 1225(b)(2)(A) provides that, if an immigration officer “determines” that an “applicant for admission” is “not clearly and beyond a doubt entitled to be admitted,” then the alien “shall be detained for a proceeding under Section 1229a of this title” to determine whether he will be removed from the United States” … “Alternatively, if an alien lacks valid entry documentation or misrepresents his identity, he shall be “removed from the United States without further hearing or review unless” he “indicates either an intention to apply for asylum . . . or a fear of persecution.” § 1225(b)(1)(A)(i). If the alien makes such a showing, then he “shall be detained for further consideration of the application for asylum.””

        Notice those “shall be detained” lines? They’re direct quotes from statutory law. Not “may”, “shall”. The court noted that, ” Most importantly for this case, when DHS places an applicant for admission into a full removal proceeding under Section 1229a, the alien is subject to mandatory detention during that proceeding.”

        “Mandatory”. Not “discretionary”.

        Continuing, “But Congress allows DHS an alternative to mandatory detention in the United States: “In the case of an alien described in [Section 1225(b)(2)(A)] who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, [DHS] may return the alien to that territory pending a proceeding under Section 1229a of this title.””

        As I described, the injunction was based on the MPP program being a way to implement statutory law, and its rescission being a decision to cease implementing statutory law.

        This is the sort of thing courts of law are expected to care about.

        1. If you bothered actually reading any law-type substance, Brett, you’d know that this part of the lower court opinion is not just wrong, but so wrong it’s not even funny.

          ….which is why the SCOTUS is ONLY based on the Regents.

          Anyway, I will repeat what I said before- if you want to understand things, you can. If you don’t, you won’t. I can’t help you there.

          But if you do find yourself going, “Woah, how is that result I like are always awesome and constitutional and lawful, and the ones I don’t aren’t, even though I strenuously argued against one, and then the Court just used the one I hated to support the like?” you might pause for some self-reflection.

          ….or, given the history, probably not.

          1. You are, of course, free to think the lower court’s reasoning in imposing the injunction is laughably stupid, but I’ve accurately described that reasoning. As my excerpts confirm.

            So, if I’m wrong, and not even so wrong it’s not funny, I’m still no more wrong than an experienced judge. Which I personally think is a reasonable bar for an engineer with no legal training at all to clear.

            I have to say you’re reading an awful lot into a half page Supreme court rejection of a request for a stay. The lower court at least analyzed the issues involved.

            1. Brett, I am truly amazed that you have suddenly become an expert not just on the law (although you have recently claimed to be something of an expert on all of the different states’ election laws) but on administrative law AND immigration law, such that you not only understand exactly what you have cited (and the context for it) but also exactly why people find the decisions of the 5th and SCOTUS in terms of a preliminary injunction in this arena so problematic.

              Not to mention that you have magically managed to distinguish the precedent that was relied UPON to decide the case from the case based upon your own policy preferences by using a factor that wasn’t considered but the Courts.

              Truly, you are a man of many talents! I may lack the certainty of you, but will have to make up for it in understanding.

              1. I’m face palming right now. I literally gave you a link to the court decision granting the injunction, and you can read the rationale behind it.

                You don’t have to like or agree with that rationale for it to BE the rationale. They granted the injunction because MPP was upholding statutory law, and the rescission was a decision to violate it.

          2. Um, no, the SCOTUS ruling is not only based on Regents.

            The SCOTUS ruling states that the Federal government has not proved that they’re likely to win on the merits of the case. Which they can’t find if the lower court ruling was trash.

    2. Except “wet foot dry foot”…so clearly Republicans in Congress believe the president has broad discretion in enforcing immigration/asylum/border laws. So without “wet foot dry foot” the Cubans currently entering America illegally via water are being deported whereas before they would be placed with a relative in Miami and get fast track citizenship via congressional program.

      SIV program is also a congressional program that requires extreme vetting of Iraqis and Afghanis that worked with Marines and Rangers…so for some reason Congress in 2008 believed SIV applicants need extreme vetting while Cubans should get a red carpet….such a head scratcher. 😉

      1. Notice, by the way, that the statute referred to in the MPP case actually distinguished between arrivals by land, and other arrivals, and as you say, there’s an actual Congressional statute relating to Cuba.

        So, again, a distinction between enforcing, and not enforcing, the law. Something judges are supposed to pay attention to.

  4. Innocence: No problem. Byrd wasn’t the aggressor

    Imminence: This is a problem. The question is, was there an imminent lethal threat. As in…right then. Not 1 minute from then. And the answer is largely no. Babbitt was unarmed. Crawling through a window. Byrd was supported by several police officers, and did not spot a weapon that would cause an imminent lethal threat in her possession.

    Proportionality: This is a second problem. The protestors were unarmed for the most part, and there were no lethal weapons (guns, knives) spotted. Could Byrd have been overwhelmed? Potentially. But he had the support of several officers in the area. Unarmed rioters are almost never dealt with, with lethal force. It’s not proportional.

    Avoidance: He’s fine here. He’s a cop. He doesn’t have a duty to retreat.

    Reasonableness: This is also a problem. And the reason it’s a problem is all the other cops in the room, none of which did anything similar…or even drew their guns. You’ve got to compare Byrd here to other people in the same situation.

    If there’s a civil trial, it’s going to be a big problem. You’re going to put every other cop there up on the stand and ask “Did you draw your gun? Did you fire? Why or why not”….and it’s going to be a problem for Byrd, if no other officer in that room had drawn and pointed their gun…but only Byrd did.

    1. Edit…mispost

  5. “no rule of consistency requires those who supported the Court’s decision blocking the DACA rescission to view this latest order as relevantly alike”

    Well, when you start from the reality that the Legal Left has no principles, and respects no precedent that gets in their way, it’s easy to understand why the Left doesn’t find Regents binding on them.

    Esp. since the actual sum total of Regents for the 4 hard core Lefties was “but Trump!”

    1. You’re certainly starting from a pre-decided outcome. You clearly haven’t even read the decisions, preferring to just fill them in with what you want them to say.

      1. Wrong, I’ve read the district and circuit court decisions, as I mentioned last time you asked.

        I glanced at Regents when it came out, it was utter “but Trump” BS.

        By its very nature, no Executive Order can bind a future Administration. Only a law can do that, and the law was in no way on Obama’s side with DACA.

        With MPP, we have the Federal Government enforcing US immigration law, and the DHS signing an agreement with States to behave in a certain way.

        With DACA we have Obama saying “I’m going to completely ignore the law, and you can’t force me to follow it. My oath of office, with the requirement that I take care to faithfully execute the laws of the US is trash”

        The idea that you could have a legitimate “reliance interest” on a new prosecutor following the “prosecutorial discretion” of the previous prosecutor is insane. Especially when the new guy was voted into office in part to reverse that choice

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