Washington, DC – In a must-read explainer in Vox, Ian Millhiser describes in detail why, based on precedent, the decision not to uphold a stay in the Remain in Mexico case (Biden v. Texas) defies logic and upends the balance of power between elected branches and the judiciary. Millhiser goes on to say that one of the most fundamental principles of decisions involving foreign policy is that judges should be “extraordinarily reluctant to mess around with foreign affairs.”
Below, find excerpts of the piece, which is online at Vox here.
The Supreme Court handed down an order Tuesday evening that makes no sense.
It is not at all clear what the Biden administration is supposed to do in order to comply with the Court’s decision in Biden v. Texas. That decision suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is. And it forces the administration to engage in sensitive negotiations with at least one foreign government without specifying what it needs to secure in those negotiations.
One of the most foundational principles of court decisions involving foreign policy is that judges should be extraordinarily reluctant to mess around with foreign affairs. The decision in Texas defies this principle, fundamentally reshaping the balance of power between judges and elected officials in the process.
The central issue in Texas is the Biden administration’s decision to terminate former President Donald Trump’s “Remain in Mexico” policy, which required many asylum seekers arriving at the United States’ southern border to stay in Mexico while they awaited a hearing on their asylum claim. Although the policy was formally ended under Biden, it hasn’t been in effect since March 2020, when the federal government imposed heightened restrictions on border crossings due to Covid-19.
Nevertheless, a Trump-appointed federal judge, Matthew Kacsmaryk, ordered the Biden administration to reinstate the policy, and he gave the administration exactly one week to do so. The Supreme Court’s order effectively requires the administration to comply with Kacsmaryk’s order, at least for now, with one vague and confusing modification.
…If the Biden administration refuses such demands, has it acted in good faith? Who knows? The Court hasn’t told us. And Judge Kacsmaryk now has the power to hold the Biden administration in contempt if he determines that they haven’t acted in good faith.
The decision upends the balance of power between the elected branches and the judiciary. It gives a right-wing judge extraordinary power to supervise sensitive diplomatic negotiations. And it most likely forces the administration to open negotiations with Mexico, while the Mexican government knows full well that the administration can’t walk away from those negotiations without risking a contempt order.
With this order, Republican-appointed judges are claiming the power to direct US foreign policy — and don’t even feel obligated to explain themselves.