For now, anyway, although the order issued late yesterday hints that the Biden administration needs to start from scratch on this policy change. A lower court ruled that the White House didn’t follow the Administrative Procedure Act in changing Donald Trump’s Remain in Mexico policy on immigration, and the Supreme Court’s denial of a stay all but confirms it:
The Supreme Court has issued an order effectively forcing the Biden administration to restore the Trump administration’s “Remain in Mexico” policy, which requires many asylum seekers to wait in Mexico while they await hearings on their requests for safe haven in the U.S.
The high court’s order, issued on Tuesday evening over the dissent of the court’s three Democratic appointees, rejected the Justice Department’s request for a stay that would have allowed the controversial policy to remain on ice while litigation over President Joe Biden’s effort to rescind it continues.
The ruling is a victory for the states of Texas and Missouri, which sued over the repeal of the policy and won a ruling from a federal judge in Texas earlier this month requiring that the Biden administration return to the practice President Donald Trump instituted in January 2019.
U.S. District Court Judge Matthew Kacsmaryk, a Trump appointee in Amarillo, Texas, ordered on Aug. 13 that the Biden administration reinstate the policy within seven days. The judge accepted arguments from the Republican attorneys general of Texas and Missouri that the Biden administration had failed to comply with legal requirements to consider all relevant factors before halting the Trump-era policy.
Biden’s not the first president to have his executive orders run afoul of the APA. Trump himself repeatedly got caught short in courts over APA issues. For instance, on DACA, as Politico notes:
The legal drive to force the Biden administration to restore the Trump-era “Remain in Mexico” policy is part of an effort by conservatives to leverage legal precedents set during the Trump presidency to unwind Biden’s initiatives on immigration and other issues. The Supreme Court’s brief order on Tuesday night cited the court’s ruling last year blocking Trump’s repeal of the Obama-era Deferred Action for Childhood Arrivals, or DACA, policy, which gave work permits and some protection against deportation to immigrants who entered the U.S. illegally as children.
In that decision, the Supreme Court ruled, 5-4, that the Trump administration violated the Administrative Procedure Act by failing to consider important factors in the decision. Chief Justice John Roberts angered Trump and some conservatives by joining the court’s Democratic appointees to block Trump’s wind-down of DACA.
The APA giveth, and the APA taketh away. Or vice versa, depending on your point of view. Congress passed the APA to ensure that policy changes take into account the interests of all parties, especially Congress and the states, and to keep control over the whims of the executive branch. EOs that bypass that process are almost arbitrary and capricious by definition, which is why the Supreme Court voted 6-3 to refuse a stay.
One has to wonder, however, whether this might have been prompted by Joe Biden’s defiance of an earlier Supreme Court ruling on the eviction moratorium. The court ruled in that case that the CDC lacked constitutional authority to impose eviction moratoria at all, but decided to play nice and not revoke the current moratorium as it was set to expire in 32 days anyway. Brett Kavanaugh warned, however, that Congress would have to craft a new moratorium for the policy to continue. Instead, Biden ordered the CDC to issue a new extension, which may have taught six justices the folly of playing nice with this White House.
Or maybe the eviction moratoria had nothing to do with this stay. The decision is completely defensible on its own, and consistent with its rulings in the Trump administration. It’s fun to think otherwise, of course.
Not that it matters much in the end. With the EO route closed by the Supreme Court, the White House will now work on changing policy through the APA process. It’s longer and much more complicated than a presidential edict, but the end product will withstand legal scrutiny. It’s the process Biden should have followed from the beginning, but EOs are much more satisfying for presidents who want to project power. And that’s also a pretty good argument for courts to enforce the APA at every turn.
One final thought, however: will Biden actually follow through on this policy change? The border situation had been a catastrophe after Biden’s abrupt policy changes and rhetorical signals. The White House has a much bigger disaster on its hands in Afghanistan at the moment, but that has also eroded its political standing to the point that it can’t afford more chaos at the border once Afghanistan completely collapses. Enforcing the Remain in Mexico policy would actually ease the problem at the border and give Biden some political breathing room. Only a completely inept politician would pass on this chance handed to him by court order.
Unfortunately for all of us, Biden may be the most inept president we’ve ever elected.
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