It’s easy to miss amid the flood of other news, but thanks to the Supreme Court, a big chunk of our national immigration policy is now being run by a federal trial court judge in Texas. Oh, yes, also our foreign relations.
My beef, though, isn’t with Kacsmaryk as much as with his superiors at the Supreme Court. In a brief order Tuesday evening, the justices — with the three liberals dissenting — refused to disturb Kacsmaryk’s ruling requiring the Biden administration to resume Donald Trump’s “Remain in Mexico” policy at the southern border, first adopted in 2019.
That is bad policy. The Migrant Protection Protocols, as the program is officially named, have required tens of thousands of asylum seekers to stay in Mexico, often in squalid and dangerous conditions, as they awaited hearings. The Trump administration’s argument was that this approach would help speed up the process and reduce backlogs.
But as President Biden’s homeland security secretary, Alejandro Mayorkas, observed in a June memo, “the focus on speed was not always matched with sufficient efforts to ensure that conditions in Mexico enabled migrants to attend their immigration proceedings.” Around 44 percent of individuals in the program missed their hearings — a number, Mayorkas said, that “raises questions for me about the design and operation of the program, whether the process provided enrollees an adequate opportunity to appear for proceedings to present their claims for relief.”
But who has the better policy, Trump or Biden, isn’t the real issue here. It’s what role the federal judiciary should play in flyspecking that policy and, in particular, what should happen while the legal questions are being sorted out.
I’m a big believer in judicial review. The ability to seek redress from the courts saved us from disaster after disaster during the Trump administration, including in the immigration context. To take one example the court cited in its order, a five-justice majority — thanks to the vote of Chief Justice John G. Roberts Jr. — found that the Trump administration had acted arbitrarily and capriciously when it revoked the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. The court didn’t say that Trump lacked the legal authority to undo DACA, only that he didn’t do so carefully enough.
In Tuesday’s order, the court said the Biden administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.”
So why isn’t this Republican goose, Democratic gander?
For one, because this case is still making its way through the judicial system. Maybe, as the court’s order suggested, it will turn out that the Biden administration acted as sloppily in ditching Remain in Mexico as its predecessor did in dumping DACA. But the issue here was what should happen while the courts sort that out.
Ordering the Biden administration to move to immediately reinstate a program that hasn’t been in operation since March 2020 (the previous administration suspended it because of the pandemic), that it doesn’t believe is good policy, that requires coordination with the Mexican government — none of this needs to be done while the litigation is proceeding and the outcome uncertain.
As acting solicitor general Brian H. Fletcher told the justices, the order “requires the government to abruptly reinstate a broad and controversial immigration enforcement program that has been formally suspended for seven months and largely dormant for nearly nine months before that.” David Shahoulian, assistant secretary for border security at the Department of Homeland Security, said complying would be “near-impossible.” State Department official Ricardo Zúñiga said that “mandatory and immediate re-implementation of MPP on a wide-scale basis would undermine the U.S. government’s flexibility and discretion, negatively impact U.S.-Mexico bilateral relations and subject already-vulnerable individuals to increased risks.”
And then there are layers of hypocrisy. The conservative justices were remarkably solicitous of the Trump administration’s unprecedented and frequent pleas for emergency orders, especially in the immigration context.
As University of Texas School of Law professor Stephen I. Vladeck noted, of 28 emergency stays that the court issued in response to Trump administration requests, 11 involved lifting district court injunctions against Trump administration immigration policies. Indeed, when immigration rights groups challenged the legality of the Remain in Mexico policy and a different district court judge blocked it from taking effect, the Trump administration sought a stay from the Supreme Court, which was happy to oblige. For the Biden administration, no such luck.
The conservative justices like to opine on the limits of the judicial role, the importance of deference to the executive and the particular need to avoid having the judiciary insert itself into foreign affairs. Where, exactly, were those noble sentiments here?