SCOTUS May Have Ended Trump’s Cruel Border Policy. It’s Hardly a “Home Run” Victory for Immigrants.

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Immigrants detained at a US border detention center

On June 30, the Supreme Court handed down its last and virtually only uplifting decision in an otherwise regressive and chilling term. After killing Roe v. Wade and the constitutional right to abortion, limiting Miranda Rights protections, and delivering a blow to climate action, the conservative supermajority decided not to add the rights of immigrants to their list of casualties—at least not entirely—and gave a rare win to the Biden administration. 

In the highly anticipated case of Biden v. Texas, the justices ruled in a split 5-4 vote that the Biden administration could terminate one of the Trump era’s most nefarious immigration policies, the Migrant Protection Protocols, MPP, program. Justice Amy Coney Barrett agreed with the majority’s view on the merits of the case but “not with its decision to reach them.” Informally known as “Remain in Mexico,” the initiative left more than 70,000 non-Mexican asylum seekers stranded in dangerous border towns as their cases made their way through US immigration courts. 

There’s no denying the Supreme Court decision represents a very real victory for immigrants and their allies as it basically authorized the end of MPP. But as I’ve written before, at the center of this case was not only the fate of this particular program but also the question of how much authority the executive branch has to undo policies implemented by a previous administration with which it disagreed, as well as whether states can continue to dictate federal immigration policy through the courts. The ruling in Biden v. Texas is likely to influence future litigation on immigration issues and not always to the benefit of immigrants. 

Here’s a brief recap: The Biden administration sought to terminate the policy on its first day in office and on June 1, 2021, Department of Homeland Security ,DHS, Secretary Alejandro Mayorkas issued a memo officially ending MPP. He said it “does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortcomings.”

But the states of Texas and Missouri sued to prevent the termination of the policy, arguing that the government only had two real options: detain all arriving migrants or send them to Mexico. The US District Court for the Northern District of Texas sided with the states, finding that the DHS June memo ending MPP was “arbitrary and capricious,” and ordered a nationwide injunction forcing the Biden administration to reinstate the policy. As many as 5,000 asylum seekers were enrolled in the relaunched and expanded version of “Remain in Mexico,” which continued throughout the litigation.

To more deeply understand and unpack the legal implications of this Supreme Court ruling, I spoke separately with two experts: Michael Kagan, an administrative and immigration law professor and director of the University of Nevada, Las Vegas, immigration clinic, and Kate Melloy Goettel, legal director of litigation at the advocacy group American Immigration Council. “In baseball terms, I would say this decision is good: It’s a single, it’s not a home run,” Kagan told me. “I’m not even sure it’s a double.” 

On the impact on future litigation: The majority decision delivered by Chief Justice John Roberts states that the District Court of Texas didn’t have the authority to block the termination of MPP. That ruling built on another recent decision by the Supreme Court in this term’s case, Garland v. Aleman Gonzalez, where the justices held that lower courts can’t issue “injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.” Injunctions, Goettel explains, are powerful tools “to get immigration agencies to either do something or to stop doing something.” 

ISABELA DIAS/Mother Jones

Edited for space by The Islamic Post