Washington, DC – The following is a statement from David Leopold, Legal Advisor to America’s Voice, past president, American Immigration Lawyers Association (AILA) and Immigration Group Leader, Ulmer & Berne LLP:
“Today’s Supreme Court decision in Biden v. Texas is a clear loss for Texas Attorney General Ken Paxton and his fellow nativists who sought to keep Trump’s ‘Remain in Mexico’ policy (also known as MPP) alive by attacking it in a friendly Texas federal court. Today, the Supreme Court, speaking through Chief Justice John Roberts, actually applied the law to the facts and temporarily blunted the GOP’s anti-immigrant judicial pipeline by holding that the Biden Administration had the authority to end Remain In Mexico. In a ruling that surprised many Court watchers, Roberts, expressing legitimate concerns about judicial meddling in foreign policy, recognized that U.S. foreign policy should not be farmed out to random U.S. district judges:
“The Court of Appeals imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico. MPP applies exclusively to non-Mexican nationals who have arrived at ports of entry that are located “in the United States.” §1225(a)(1). The Executive therefore cannot unilaterally return these migrants to Mexico. In attempting to rescind MPP, the Secretary emphasized that “[e]fforts to implement MPP have played a particularly outsized role in diplomatic engagements with Mexico, diverting attention from more productive efforts to fight transnational criminal and smuggling networks and address the root causes of migration.”
While the Supreme Court today ended MPP, at least temporarily, the Chief Justice sent the Biden administration’s October 29, 2021 memoranda terminating the“Remain In Mexico” policy back to the 5th Circuit’s lower courts to determine whether they comply with the Administrative Procedures Act (APA). There’s no doubt that the Biden Administration’s termination of MPP will face further attack by Paxton and his anti-immigrant allies. Moreover, as has become obvious over the past several years, the Fifth Circuit judges, many appointed by Trump, rarely miss a chance to make political decisions that attack immigrants, which is what Paxton and his ilk want.
Our judiciary has been egregiously politicized by Donald Trump and Mitch McConnell, among others. To save it, President Biden and Senate Democrats must prioritize federal district and circuit court nominations and, it’s clear, we need to expand the Supreme Court and impose term limits on the justices.”
