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ICYMI: “Supreme Court ‘Remain in Mexico’ Decision Gives Lone Trump Judge Control Over Biden’s Foreign Policy”

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Slate’s Dahlia Lithwick and Mark Joseph Stern: “The implications of Tuesday’s decision are profoundly disturbing.”

Washington, DC – In a recent piece for Slate, Dahlia Lithwick and Mark Joseph Stern analyze and denounce the Supreme Court’s decision to require the Biden administration to restart implementation of the ‘Remain in Mexico’ policy. During the Trump presidency, conservative justices insisted the courts defer to the president’s constitutional authority over foreign affairs. During the Biden presidency, they are allowing a Trump-appointed judge, Matthew J. Kacsmaryk, to force the government into sensitive diplomatic negotiations over border policy. Evidently, the packed court sees no problem in veering sharply into partisan political territory, with one set of rules for Republican presidents and another for Democratic ones.

Below, find excerpts of the piece, which is online at Slate here.

… The implications of Tuesday’s decision are profoundly disturbing. The conservative justices spent the bulk of the Trump years insisting that courts must defer to the president’s constitutional authority over foreign affairs. 

Now they have allowed a lone Trump-appointed judge, Matthew J. Kacsmaryk, to force the government into sensitive diplomatic negotiations over border policy. Their decision even grants Kacsmaryk sweeping authority to oversee these negotiations so he can ensure that the Biden administration is pushing Mexican officials hard enough to revive Trump’s program, something the administration does not want to do. And they have seemingly abandoned their skepticism toward nationwide injunctions like this one—a position some held when it allowed them to undermine the federal judiciary’s check on Trump. In the process, the six Republican-appointed justices have injected chaos, confusion, and cruelty into the United States’ border policy, thrusting thousands of asylum-seekers into legal limbo.

The Supreme Court gave special immigration policy deference to Donald Trump, turning a deliberate blind eye to racist motives for the Muslim ban, under the theory that the executive branch has unique constitutional authority over immigration policy. But now, this same court, aided by a raft of conservative jurists, will refuse such deference to Biden. For those who continue to insist that the Supreme Court transcends politics, these flip-flops should prove otherwise.

Perhaps the most perverse aspect of the litigation over “Remain in Mexico”—also known as the Migrant Protection Protocols, or MPP—is that the policy itself is illegal. The Immigration and Nationality Act does allow the government to return a narrow class of migrants to “contiguous territory” while they await hearings. But, as a federal appeals court explained in 2020, the law does not allow the government to send the vast majority of asylum-seekers back to Mexico to await hearings. Doing so violates the United States’ treaty obligations as implemented in the INA, which bar the government from sending refugees back to countries where they fear persecution.

… This case gave the full court a chance to exhibit consistency between Republican and Democratic presidents. Instead, they tore up the rules they established under Trump and allowed Kacsmaryk to dictate the administration’s foreign affairs. They did not even narrow the scope of his injunction, even though Justices Clarence Thomas and Neil Gorsuch decried these kinds of nationwide injunctions when they were issued against Trump.

… Immigration lawyers have long objected to the Remain in Mexico policy on humanitarian grounds. When the policy was first enacted in 2019, asylum-seekers were detained under horrific conditions in camps rife with violence, rape, torture, and disease as they awaited their immigration hearings in the U.S. Human Rights First has identified more than 800 violent attacks on asylum-seekers stuck in Mexico under MPP, including kidnapping, rape, and murder.  It is no accident that one of Biden’s first actions as president was to formally suspend it, even as his larger record on border control remains mixed.

… Not very long ago, the high court used its shadow docket to spank what it deemed runaway district court judges arrogating power to set immigration policy in violation of Trump’s orders. Now, the same shadow docket is being used to hand federal immigration powers to runaway district court judges, with no rule or principle set forth beyond the fact that Biden should just lose, because they say so.

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