Washington, DC – The anti-immigrant judicial pipeline reared its ugly head yesterday, with the conservative 5th Circuit Court of Appeals rejecting the Biden administration’s attempt to end the MPP/Remain in Mexico program. As David Leopold described in August, The anti-immigrant judicial pipeline “flows from Republican Attorneys General to hand-picked United States District Court Judges (usually Trump appointees in Texas), to the conservative Fifth Circuit and finally, to the United States Supreme Court.”
Sure enough, as Mica Rosenberg wrote for Reuters last night, “The Biden administration re-issued a memo terminating MPP in the hopes it would overcome the legal challenges. But the conservative-leaning 5th U.S. Circuit Court of Appeals was not convinced by the new memo.” As leading legal observers quickly noted, the 5th Circuit’s ruling, and reasoning, was politics masked as law, getting key and basic law and factual context flat wrong:
- Aaron Reichlin-Melnick, policy council of the American Immigration Council had a must-read thread analyzing the many reasons the ruling got it wrong. He noted in part: “A crushingly bad (but expected) decision from the 5th Circuit tonight upholding Judge Kascmaryk’s decision ordering the reinstatement of MPP, and agreeing with his outrageous holding that a law from 1996 *requires* MPP—which didn’t exist until 2019 … The district court’s “most important finding” was blindingly wrong, treating a gushing Trump-era equivalent of a press release as gospel fact. We submitted an entire factual amicus brief debunking all of this stuff. The 5th Circuit doesn’t mention our brief even once.” He added, on a separate thread, “from an admin law perspective, the decision is nonsensical.”
- Mark David Stern, legal analyst for Slate, noted: “Trump judges are ruthlessly imposing Trump’s policies on the Biden administration and it gets little attention in the mainstream press because it’s wrapped in legalese that many reporters deem too dense to explain to the public.”
- Steve Vladeck of the University of Texas School of Law noted, “It’s telling that we’re at a point where rulings like this (with all of the problems Aaron [Reichlin-Melnick] notes in his thread) have become ‘expected’ from the second-largest federal appeals court in the country.”
- Ahilan Arulanantham, co-director of the UCLA Center for Immigration Law & Policy observed, “That [the court] failed to treat the new rescission as a new rescission is completely bonkers.”
According to David Leopold, legal advisor to America’s Voice, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association:
“Last night’s 5th circuit ruling on MPP was radical in its sweep, stunning in its mischaracterization of the law, and depressingly predictable as a way station on the anti-immigrant judicial pipeline.
From Ken Paxton to Texas judges to the 5th circuit court, pro-Trump conservatives have put their thumbs on the scale to advance Trump policies and conservative political goals under the guise of the law. Unless the White House and Democrats on Capitol Hill institute changes into the federal judiciary, this is our future on immigration and other progressive issues.”
For more, read David Leopold’s Medium post from August 2021, “The Anti-Immigrant Judicial Pipeline Is Gushing And There’s Only One Way to Stop It”
