In a 5-4 decision, The Supreme Court of the United States (SCOTUS) ruled, on Thursday that the Biden administration, did not violate the Immigration and Nationality Act (INA) when it sought to end the “Remain in Mexico” program, which was first imposed by former President Trump’s administration. However, the highest court in the land is sending a key part of the case back to a lower court.
Allowing the Department of Homeland Security (DHS) to quickly return border crossers to Mexico while they await their asylum and immigration hearings in the United States, the “Remain in Mexico” program effectively eliminated the practice commonly known as “Catch and Release.”
After Biden suspended the program, Homeland Security Secretary Alejandro Mayorkas ended it in June of 2021. In October, the department produced additional justifications for the policy’s demise, clearly without success in the courts.
Previously, both a district court and a court of appeals had held that the Biden administration violated the INA when it sought to end “Remain in Mexico”. The district court also held that the administration violated the Administrative Procedure Act (APA).
Essentially, the Supreme Court’s opinion, written by Justice Roberts, was joined by fellow conservative Justice Brett Kavanaugh as well as the court’s three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan.
This majority ruled that, the district court did not have jurisdiction to previously stop the Biden administration from ending “Remain in Mexico”, but also left open the possibility that the court does have the power to vacate the administration’s ending of the program. In that regard, the case will be sent back to the district court for another hearing.
Their ruling ensures that the case is not yet over, and will go back to the U.S. District Court, for the Northern District of Texas. The lower courts could help restore “Remain in Mexico” and could make the case a critical issue in 2024, as it could end up before the Supreme Court again for review.
Justice Alito in his dissent, laid out the specifics of how this return to the lower court should be litigated in order to see a more favorable future SCOTUS appeals review, stating that-
“The District Court should assess, among other things, whether it is “arbitrary and capricious” for DHS to refuse to use its contiguous-territory return authority to avoid violations of the statute’s clear detention mandate; whether the deterrent effect that DHS found MPP produced in reducing dangerous attempted illegal border crossings, as well as MPP’s reduction of unmeritorious asylum claims, is adequately accounted for in the agency’s new decision; and whether DHS’s rescission of MPP is causing it to make parole decisions on an unlawful categorical basis rather than case-by-case, as the statute prescribes. [Emphasis added]”
Essentially, “Remain in Mexico” would remain in force at least until the Supreme Court decides to hear an appeal, for any decision by the appeals court that affirms an order from the lower district court. This would then make it possible, that any final decision from SCOTUS would likely not be realized, until the first half of 2024, falling in the middle of the next presidential campaign.
On the issues raised by Alito, if the district court finds the Biden administration’s ending “Remain in Mexico” to be “arbitrary and capricious”, the program will be reinstated. If that happens before July 31, the program might not be terminated and remain in force, awaiting the Justice Department to appeal to the Fifth Circuit appeals court.
The timing of the appellate court, could set the case back to being re-visited by the Supreme Court in the fall of 2023, with a decision falling in the 2024 election year. This means that “Remain in Mexico” could be reimplemented for the full length of time, except for the months between any 2024 Supreme Court decision and a newly elected presidents’ term of office. At that point the new president would be taking the helm.
With the U.S. border crisis of major concern to vasts numbers of America’s citizenry, how this law plays out over time, will prove critical in any election year presidential candidates’ platform.
At present however, there are no words to justify the current Biden administrations’ essential open border policies nor their blatant disregard for the recent deaths associated with their apparent invitation for illegal migrants to seek asylum here – even at the cost of their own lives.
Joe Biden, it would seem, sees the death of some illegal migrants (including women, teens and children) as collateral damage, for ultimately increasing the democratic voting numbers – and is even relying on this multinational assault on the U.S. southern border.
This situation is horrific and a national tragedy of epic proportions - that can and should be, laid squarely at his feet.
“Usury once in control will wreck the nation.”
-William Lyon Mackenzie King