For the past year, one of the Biden Administration’s most significant immigration initiatives—its decision to end a Trump-era policy called the Migrant Protection Protocols, also known as “Remain in Mexico”—has been blocked by a federal judge in Texas. Until the pandemic, when the U.S. effectively ended asylum at the border altogether, M.P.P. was the most aggressive immigration policy of the Trump era: it forced some sixty thousand asylum seekers to wait indefinitely in dangerous encampments in Mexico while their cases inched through American immigration courts. Biden campaigned against it, and immediately wound it down once in office. In August, 2021, after two state attorneys general filed a lawsuit against the President, the Texas judge issued an injunction, halting the Administration’s efforts and reinstating the Trump policy. The conservative Fifth Circuit Court of Appeals upheld the decision. But, on Thursday morning, in a surprise 5–4 decision written by the Chief Justice John Roberts and joined by Brett Kavanaugh, the Supreme Court gave Biden a narrow but notable victory. The district court could still strike down Biden’s policy. For now, though, the injunction blocking the President from ending M.P.P. is lifted.
The ruling, Biden v. Texas, underscored just how extreme the lower courts’ reasoning had been—and, by extension, how entrenched the conservative position on immigration enforcement has become. The Fifth Circuit ruled that the President had only two options for handling new arrivals at the border: it could detain them or expel them. Because of limited detention capacity, the logic went, ending M.P.P. meant that the government was breaking the law by allowing some migrants into the U.S. while they applied for asylum. “The problem,” Roberts wrote, “is that the statute does not say anything like that.” The federal government has never been able to detain everyone at the border (not that it hasn’t tried), and for decades Democratic and Republican Administrations, including Donald Trump’s, allowed asylum seekers into the country. “Obviously, this is a victory,” Judy Rabinovitz, an A.C.L.U. attorney who has been litigating M.P.P. since 2019, told me. “It is a resounding rejection of the Fifth Circuit.”
The second major flaw in the lower courts’ position was procedural, though also partisan. It concerns a law known as the Administrative Procedure Act, which became a common tool during the Trump years for the courts to block federal policies that the government hadn’t fully weighed or explained. In 2020, the Supreme Court stunned the Trump Administration by ruling that the President’s decision to cancel DACA—the Obama-era program protecting from deportation some seven hundred thousand immigrants who came to the U.S. as children—violated the A.P.A. Since then, conservatives have sought to turn the A.P.A against Biden. A year and a half into his term, the President has tried to restore Obama-era enforcement priorities at Immigration and Customs Enforcement (ICE); reform asylum regulations at the border; and, after a delay, end Title 42, a dubious Trump-era order that closed the border to asylum seekers in the name of public health. Most of these policies have prompted lawsuits claiming that the Administration had violated A.P.A., leading to a number of nationwide injunctions.
Alejandro Mayorkas, the Secretary of Homeland Security, issued a memo in June, 2021, officially terminating the M.P.P program. After the federal judge in Texas ruled against the Biden Administration, Mayorkas issued another memo to justify the Administration’s decision, including a thirty-nine-page explanation that responded directly to claims raised in court. The Fifth Circuit dismissed this memo as a revamp of the first. But the Supreme Court said that was wrong—Mayorkas had done the necessary work. He “returned to the drawing table and [took] a new action,” Roberts wrote.
In this sense, the Supreme Court’s ruling in Biden v. Texas raises a troubling question. In August, 2021, the Justices refused to suspend the lower courts’ injunction while they considered the case for review. In the meantime, the Biden Administration was forced to reinstitute a policy that it opposed. “People attribute the immigration policies in place to the Administration, but huge chunks of it have actually been the policy of federal judges in Republican-led states and, ultimately, the Supreme Court,” Ahilan Arulanantham, the co-director of the Center for Immigration Law and Policy at U.C.L.A.’s law school, told me. Now the same Justices have conceded that the lower courts erred in blocking the Administration’s policy in the first place. An hour after the Thursday ruling, Arulanantham was heartened by what the decision might mean for other immigration policies derailed by injunctions: “The Biden Administration should go and argue aggressively that these injunctions are illegal based on this ruling.”
Stephen Vladeck, a law professor at the University of Texas at Austin, was somewhat less sanguine about the immediate implications of Biden v. Texas. Two of the “loudest critics of nationwide injunctions” during the Trump years were Clarence Thomas and Neil Gorsuch, he told me. Yet they “have had no problem with nationwide injunctions against Biden Administration policies.”
Immigration policies are not the only ones vulnerable to sweeping federal injunctions. Earlier this year, a Trump-appointed judge in Florida, whose husband was a close ally of Stephen Miller, single-handedly lifted the federal mask mandate. If the Republicans retake Congress in the fall, and Biden is forced to take further executive action, it’s likely that more of his moves will be stopped. Vladeck considers the Biden v. Texas case to be one of the most brazen examples of an overbroad injunction. Owing to an idiosyncrasy of Texas legal procedure, litigants can seek out specific judges by filing their suits in individual judicial districts. “So as long as states can do that, we’re in for more of this kind of government-by-injunction,” he said. “The President’s policies are only as good as the hand-picked outlier district judges in states hostile to the President’s agenda allow them to be.”
Since December, immigration agents have arrested more than a million people at the border. Only about four thousand of them have been placed in M.P.P. Most of the rest have been expelled under Title 42, which has been responsible for nearly two million expulsions since it went into effect, in 2020. But Title 42 is also in limbo. When the Biden Administration finally announced that it would end the policy, many congressional Democrats, anxious about the midterms, opposed the move; then, in May, a Trump-appointed judge in Louisiana stopped Biden with a national injunction.
On Thursday morning, when the Biden v. Texas ruling came down, Andrea Flores, who helped lead the Administration’s wind-down of M.P.P. last year, was shocked. She left the White House last fall, and now works in the Senate. “Unlike a lot of Supreme Court decisions, this one is mostly good,” she told me. “But there’s a lot of ambiguity.” Will the district court rule against Biden once more? How much time does Biden have before another court tries to intercede? Flores and a team inside the Administration had managed to “parole” thirteen thousand migrants into the U.S. before the injunction stopped them from helping more. Tens of thousands of others—the vast majority of them from Central America—would have been eligible for similar relief. Are avenues open to them now? The Supreme Court dealt only with the narrowest legal issue before it, so it will be up to the Biden Administration to orchestrate a response.
“They should stop enrolling people in M.P.P. immediately,” Flores told me. Because the threat of kidnappings and violence is high in northern Mexico, she added, the most vulnerable migrants “should be identified and brought in” to safety. “This victory with M.P.P. is bittersweet, because of Title 42,” she said. But, last year, the phasing-out of M.P.P. had served as a model for how to coördinate a broader humanitarian intervention at the border. Since then, in response to the war in Ukraine, the government developed other channels for bringing in thousands of Ukrainians, in part by using exemptions to the Title 42 policy. “D.H.S. has already done some important problem solving,” Flores said. “I hope they do the same for this population.” ♦