The Volokh Conspiracy
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This morning Chief Justice Roberts delivered a gift to the BIden Administration with the final opinion in an argued case this Supreme Court term in Biden v. Texas. In a 5-4 decision, the Court concluded it had jurisdiction to hear the case and rejected a statutory challenge to the Biden Administration's rescission of the Trump Administration's Migrant Protection Protocol, aka the "Remain in Mexico" policy. The case is now remanded back to the lower courts for additional proceedings, including other challenges to the policy change.
Chief Justice Roberts wrote for a 5-4 Court, joined by the Court's liberals and Justice Kavanaugh, who also wrote a concurrence. Justice Alito wrote a dissent joined by Justices Thomas and Gorsuch. Justice Barrett also wrote a dissent joined by the Justices Thomas, Alito, and Gorsuch, save for the first sentence of her opinion ("I agree with the Court's analysis of the merits—but not with its decision to reach them.").
Here is how Roberts explains his decision:
In January 2019, the Department of Homeland Security—under the administration of President Trump—established the Migrant Protection Protocols. That program provided for the return to Mexico of non-Mexican aliens who had been detained attempting to enter the United States illegally from Mexico. On Inauguration Day 2021, the new administration of President Biden announced that the program would be suspended the next day, and later that year sought to terminate it. The District Court and the Court of Appeals, however, held that doing so would violate the Immigration and Nationality Act, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The District Court also held that the attempted rescission of the program was inadequately explained in violation of the Administrative Procedure Act. While its appeal was pending, the Government took new action to terminate the policy with a more detailed explanation. But the Court of Appeals held that this new action was not separately reviewable final agency action under the Administrative Procedure Act.
The questions presented are whether the Government's rescission of the Migrant Protection Protocols violated the Immigration and Nationality Act and whether the Government's second termination of the policy was a valid final agency action.
On the jurisdictional question, the Chief Justice concluded the Court could here the challenge.
we see no basis for the conclusion that section 1252(f )(1) concerns subject matter jurisdiction. It is true that section 1252(f )(1) uses the phrase "jurisdiction or authority," rather than simply the word "authority." But "[j]urisdiction . . . is a word of many, too many meanings." Steel Co., 523 U. S., at 90. And the question whether a court has jurisdiction to grant a particular remedy is different from the question whether it has subject matter jurisdiction over a particular class of claims. See Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 163–164 (2010) (concluding that "[t]he word 'jurisdiction' . . . says nothing about whether a federal court has subject-matter jurisdiction to adjudicate claims"). Section 1252(f )(1) no doubt deprives the lower courts of "jurisdiction" to grant classwide injunctive relief. See Aleman Gonzalez, 596 U. S., at ___ (slip op., at 11). But that limitation poses no obstacle to jurisdiction in this
And here's the majority's summary on the merits:
Section 1225(b)(2)(C) provides: "In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a." Section 1225(b)(2)(C) plainly confers a discretionary authority to return aliens to Mexico during the pendency of their immigration proceedings. This Court has "repeatedly observed" that "the word 'may' clearly connotes discretion." Opati v. Republic of Sudan, 590 U. S. ___, ___ (2020) (slip op., at 10) (emphasis in original); see also, e.g., Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___ (2018) (slip op., at 14); Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 346 (2005). The use of the word "may" in section 1225(b)(2)(C) thus makes clear that contiguous-territory return is a tool that the Secretary "has the authority, but not the duty," to use. Lopez v. Davis, 531 U. S. 230, 241 (2001).
And as for whether the Biden Administration made the same mistake the Trump Administration had in rescinding DACA, Roberts concluded that the Adminsitration's second memorandum (the October 29 memo) was a separate, final agency action and the lower court erred in concluding otherwise.
Here is how the opinion concludes:
For the reasons explained, the Government's rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda did constitute final agency action. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. On remand, the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA. See State Farm, 463 U. S., at 46–57.
Note this indicates the Biden Administration's victory may be short-lived, as Texas and others may still pursue their APA challenges to the policy, including arguments that the Administration failed to provide an adequate explanation for the policy decision. Justice Kavanaugh stresses the point in his concurrence. So the Biden Administration is not out of the woods yet. Expect Texas, et al., to really hone their State Farm arguments on remand.