The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Biden v. Texas, the very last case of the just-concluded Supreme Court term, the Court rejected a legal challenge to President Biden's termination of Donald Trump's "Remain in Mexico Policy" (more formally known as the Migrant Protection Protocol). MPP forced many non-Mexican migrants to wait in Mexico for months at a time, as their asylum and removal cases were considered. The ruling was 5-4, with Chief Justice Roberts and Justice Kavanaugh agreeing with the three liberal justices. Justice Amy Coney Barrett dissented only on a procedural issue, and in fact agreed with the majority on the merits. In most years, this ruling might have attracted widespread attention. In 2022, it has attracted much less interest, because there have been so many high-profile rulings on other, more salient, issues.
Still, it's a significant case, both for its likely policy effects, and for its impact on presidential power over migration, more generally. While the decision likely allows Biden to end one of Trump's cruelest migration policies, it also reinforces sweeping presidential control over immigration policy. In combination with the Court's other rulings on immigration policy, Biden v. Texas helps ensure there are now very few constraints on the president's power to bar, detain, or grant entry to almost any potential migrants who who are not already US citizens or permanent residents. While I think the ruling is largely correct on the specific issues it considers, it is nonetheless part of a troubling broader picture.
Adopted in 2019, MPP was one of many Trump administration policies intended to curb immigration - both legal and illegal - as much as possible. It required many non-Mexican migrants crossing from Mexico to be immediately deported back to Mexico and remain there until their asylum and removal cases were resolves (which often takes many months). Tens of thousands of migrants were affected by the policy, and many ended up detained under terrible conditions in Mexico, at grave risk of murder, rape, and assault.
Biden promised to terminate the policy, and in June 2021, his Department of Homeland Security issued a memorandum implementing that promise. When Texas and Missouri challenged the new policy in court, a district judge ruled that the memorandum was a violation of Section 1225 of the Immigration and Nationality Act (INA), and procedurally inadequate under the Administrative Procedure Act. The Biden administration then withdrew the June memo, and replaced it with a far more through analysis issued in October, even as the litigation continued.
The legal issues in the case are only moderately complicated. Section 1225(b)(2)(A) of the INA states that "[i]n the case of an alien . . . who is arriving on land… from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title." Note the word "may" here. As Chief Justice Roberts explains in his opinion from the Court, this clearly indicates that the executive can expel this category of migrants if he wants to, but is not required to do so.
But another provision of Section 1225 states that "an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title." All nine justices - both majority and dissenters - agree that it isn't actually possible to detain all the people in question, because the federal government has nowhere near enough detention facilities to do that. As the dissent by Justice Alito concedes, "no one suggests that DHS must do the impossible." This is just one of many situations where the vast scope of federal law makes it impossible to track down and detain more than a small fraction of violators. Thus, law enforcement must pick and choose.
But Alito - backed by Gorsuch and Thomas - also contends that the impossibility of carrying out the detention mandate requires the executive to deport the remaining migrants who would otherwise have to be detained. In their view, this essentially converts the "may" in Section 1225(b)(2)(A) into a "must."
To my mind, this argument makes little sense. Nothing in the statute indicates that expulsion is somehow a mandatory remedy for violations of the detention mandate. Roberts does a thorough job of addressing this point in the majority opinion, and I won't try to recapitulate it in detail here.
Roberts' conclusion is reinforced by the fact that 8 U.S. Code §1182(d)(5)(A) gives the president the power to "parole" otherwise inadmissible migrants into the United States on a "case-by-case" basis, if doing so is "for urgent humanitarian reasons or significant public benefit." That further suggests that detention is not the only legal alternative to expulsion. The Biden administration has in fact begun to parole many of the migrants who would previously have been forced into MPP, and the horrible conditions they would otherwise face surely qualify as "urgent humanitarian reasons."
Alito argues that such large-scale use of the parole power cannot really be "case by case." But unless it is going to be completely arbitrary or random, any use of case-by-case discretion must be guided by general rules. And the authority wielding such discretion can reasonably conclude that, as a general rule, all or most migrants covered by MPP would face grave dangers if forced to remain in Mexico. Thus, their admission is justified by "urgent humanitarian reasons." I discussed the relationship of case by case discretion and general rules in more detail in this 2016 article focusing on litigation over one of Barack Obama's immigration initiatives.
The plaintiff states and the lower court ruling also contend that Biden violated the Administrative Procedure Act. Among other things, they claim that the shift from the June memorandum to the October one was an improper post hoc rationalization, barred by the Supreme Court's 2020 ruling against the Trump administration's attempts to terminate the DACA program. Chief Justice Roberts explains (correctly, I think) that there is an important distinction between the two cases, because the Biden administration didn't just provide a new rationale for the June memorandum, but actually withdrew that memo and went back to square one and started the process over. And, unlike in the case of Trump's effort to terminate DACA, Biden's rationale for terminating MPP did not simply ignore the main considerations on the other side.
As I explained at the time it was issued, the Court's ruling in the DACA case was largely a response to the extremely poor handling of the rescission effort by the Trump Administration, and the majority made it clear a future administration could find ways to get rid of the program if it wanted to. The "Remain in Mexico" case reinforces that point.
In her dissenting opinion, Justice Barrett agrees with the majority on the above issues, but argues that the Supreme Court should simply have resolved the case on procedural grounds because Section 1252 of the INA states that "no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation" of specified immigration provisions (including, the ones at stake in this case) except as applied to "an individual alien against whom proceedings under [those provisions] have been initiated." The district judge had issued an injunction against Biden's reversal of MPP, which seems to be illegal under this provision.
Barrett suggests that, if the district court could not issue an injunction, then it also arguably lacked jurisdiction to hear the case at all. I think the majority has some good arguments against this theory, including that the Supreme Court exception to the anti-injunction rule suggests that lower federal courts must have at least some jurisdiction here (otherwise a case like this could never reach the Supreme Court). But I will leave this issue to those with greater expertise on remedies. Here, I just note that all nine justices seem to agree that lower federal courts' can't (in most cases) issue injunctions against executive branch actions here, even if the latter actions were actually illegal!
The most immediate bottom line here is that the Biden administration will likely succeed in ending MPP. The majority does remand the case to the lower courts for further consideration of whether Biden violated Section 706 of the APA, which among other things, bars policy changes that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." But it seems unlikely the plaintiff states can prevail on this basis, given the thoroughness of the October memorandum, and the Court's apparent endorsement of its thoroughness.
But, while this is a victory for supporters of migration rights, it's also a win for executive power. Today's ruling indicates that the President has near-total discretion to decide whether most migrants crossing a land boundary must "remain in Mexico" (or Canada, if they came from there), detain them (at least if resources allow), or parole them into the United States (so long as there is a "humanitarian" or "public benefit" rationale for their admission).
The Court's 2018 travel ban ruling indicates he also has near-total discretion to exclude such migrants from the US entirely, even if his motive for doing is one that would be ruled unconstitutional in almost any other context. The Court has also ruled that habeas corpus constraints do not apply to the removal of immigrants, and more generally largely exempted immigration restrictions from a wide range of constitutional constraints that apply to other areas of government policy.
When you put it all together, the president ends up with sweeping power to exclude, detain, or parole the vast majority of potential migrants. Such massive discretionary power is at odds with the text and original meaning of the Constitution, and it's certainly inimical to the major questions and nondelegation principles the Court - especially its conservatives - have applied in other contexts. The Supreme Court has not yet considered a major question or nonedelegation case in the immigration field. But, when they do, I hope conservative justices resist any temptation they might feel to carve out an ad hoc exception for immigration.
In the meantime, presidential power over immigration has grows apace. Much can and should be done to curb it. But neither Congress nor the Supreme Court have - so far - made more than minimal efforts to step up to the challenge.
UPDATE: I have made a correction to my description of the Court's 2020 ruling in immigration and habeas corpus, noting it applies to removal, rather than detention. I apologize for the mistake.