Supreme Court rules Biden may not end Trump’s ‘Remain in Mexico’ policy

The Supreme Court building.
The Supreme Court is seen in Washington on June 15, 2020. 
(J. Scott Applewhite / Associated Press)

The Supreme Court’s conservative majority on Tuesday upheld a Texas judge’s order that would require the Biden administration to follow President Trump’s so-called Remain in Mexico policy.

That program sought to deter Central American migrants from seeking asylum in the United States by requiring them to stay in Mexico until their cases were heard in the U.S..

The justices by a 6-3 vote rejected an appeal from Biden’s lawyers who said the Texas ruling conflicted with the principle that the executive branch has leeway on how best to enforce the immigration laws.

The case was seen as early test of whether the court’s conservatives — including three appointed by Trump — would allow a lower court judge to challenge the president’s authority on a matter that the Supreme Court has historically given the executive branch wide latitude to control.

In a brief order, the justices said the Biden administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.”

The court’s three liberals — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — dissented and said they would have put the judge’s order on hold.

The decision is a sharp setback for immigrant rights advocates who believed the new administration could reverse most of Trump’s strict enforcement policies.

At issue is whether the migrants who arrive at the southern border may enter the United States to present their pleas for asylum and stay in the country while their cases move through immigration courts.


The pandemic inflicted considerable damage on the labor force which is still experiencing relatively higher unemployment and participation.

In 2019, the Trump administration changed that practice and adopted the Remain in Mexico policy — known formally as Migrant Protection Protocols. It required tens of thousands of migrants from Central America to wait on the Mexican side of the border until their cases could be heard.

Defending the change, Trump administration’s officials said migrants with weak claims would no longer have “a free ticket into the United States” and, as a result, they “were beginning to voluntarily return home.”

But immigrant rights lawyers told the court the policy was “a humanitarian catastrophe: asylum seekers were murdered, raped, kidnapped, extorted, and compelled to live in squalid conditions where they faced significant procedural barriers to meaningfully presenting their protection claims.”

However, even before Biden was elected, the Remain in Mexico policy had been overtaken by the pandemic. The Trump administration barred immigrants from entering the country based on a health directive designed to stem the spread of infectious diseases, and the Biden administration maintained that rule.

In the interim, Biden’s top immigration advisors decided to suspend and then formally repeal the Remain in Mexico policy. They said it had achieved mixed results, but had proved to be costly and difficult to coordinate. They said a significant percentage of the asylum seekers were not present when their cases were heard by an immigration judge.

But lawyers for Texas and Missouri sued in a federal court in Amarillo, Texas, and argued the Trump policy must be maintained. They said the repeal had triggered a surge of new migrants at the southern border, and if allowed to cross into the United States, they would prove a costly burden for Texas and its taxpayers.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, agreed with the Texas lawyers, and on Aug. 13 he issued a nationwide order that requires enforcement of the Remain in Mexico policy. He said Biden’s repeal of Trump’s policy was “arbitrary and capricious,” and violated federal procedural law.

A week later, the U.S. 5th Circuit Court of Appeals in New Orleans refused to block the judge’s order.

The administration then went to the Supreme Court and cited several of its emergency orders that set aside rulings from judges in California and elsewhere that blocked Trump’s policies.

“In recent years, this court has repeatedly stayed broad lower court injunctions against executive branch policies addressing matters of immigration, foreign policy, and migration management. It should do the same here,” acting Solicitor Gen. Brian H. Fletcher wrote

The case was Biden vs. State of Texas, 21A21.