Reasonable people can differ on whether the Trump administration’s Migrant Protection Protocols program, better known as the “Remain in Mexico” policy, is a good way to handle asylum claims at the border. The Supreme Court’s order on Tuesday effectively overturning the Biden administration’s efforts to date to do away with the protocols, however, was not based on a policy judgment; instead, it was a proper application of the relevant law and a defense of democratic governance.
The Constitution clearly states that only Congress shall make laws. Since the Remain in Mexico policy determines the legal rights of people attempting to enter the United States, it has the effect of a law. That creates a constitutional conundrum: How can the executive branch enact such a law when the Constitution clearly grants that power to Congress?
Leer en español: La Corte Suprema hizo lo correcto al restablecer la política ‘Permanecer en México’ de Trump
The answer to that is the result of more than a century of constitutional jurisprudence and statute. The jurisprudential answer is that the Supreme Court has allowed Congress to delegate its lawmaking powers to the executive branch or to independent agencies so long as Congress provides an intelligible principle that guides and governs those entities. No one is contesting that the power of either the Trump or the Biden administration runs afoul of that principle.
That delegated power, however, must be exercised according to the Administrative Procedure Act (APA) of 1946. That act sought to curtail the power of entities with delegated power to promulgate new rules without substantial public input or transparent processes. Thus, rulemaking normally requires extensive open hearings with opportunities for public comment and testimony. This process takes months or years, just as passing laws in Congress normally takes a substantial amount of time and public debate.
The APA also requires that any resulting decision not be “arbitrary and capricious.” Under this standard of review, a court can require an entity exercising delegated powers to show that its rule bears some reasonable relationship to the facts it has unearthed during its hearings and decision-making process. The point is that if an entity is going to pass a rule, it cannot be done in a manner more fitting for an absolute monarch than for a democratic republic.
This, not the Remain in Mexico policy’s desirability, is what the court ruled on. Its order clearly stated this, noting that the administration had not shown a “likelihood of success” on its claim that rescinding the protocols was “not arbitrary and capricious.” This finding allows the administration to go back to the drawing board and work to repeal the policy by the process set forth in the APA. That will take time and require a public and transparent process, but that’s simply what the law requires.
The court made this crystal clear when it cited last year’s decision invalidating the Trump administration’s attempt to rescind the Obama-era Deferred Action for Childhood Arrivals policy. By a 5-to-4 majority, the court held in Department of Homeland Security v. Regents of the University of California that the Trump administration’s rule was arbitrary and capricious because it failed to consider a host of possible ramifications of that repeal and to properly distinguish all the matters within the agency’s discretion and explain its decision in light of facts. The court’s order on Tuesday specifically cited the pages of that prior opinion. The defect was procedural, not political.
It is hard to see why this wasn’t an open-and-shut case. The Biden administration rescinded the Remain in Mexico policy on Jan. 20, Biden’s Inauguration Day. There was no attempt to request public input or hold any public hearings. The memorandum rescinding the policy merely makes assertions about the Department of Homeland Security’s capabilities and makes no efforts to provide supporting facts or show any consideration of the effects of its rescission. If a memo without justification or reasoning can overturn a lawfully enacted rule, then the “arbitrary and capricious” standard means nothing and the executive is no different from an absolute monarch in vast areas of the law.
The Founders constructed our system to ensure that public decisions would be made in public, with public input and by the public through its elected representatives. The APA’s requirements apply those touchstone principles to the apparatus of modern government. The court’s order on Tuesday is a stirring defense of those principles, and as such deserves praise from all who value American democracy.