Matthew Kacsmaryk, a Trump judge in Texas who essentially seized control of much of the United States’ southern border policy, appears likely to join the small cohort of Republican judges who went so far out on a limb that even this Supreme Court will not tolerate their behavior.
Last August, Kacsmaryk ordered President Joe Biden’s administration to reinstate
a Trump-era policy colloquially known as “Remain in Mexico,” which requires many migrants who arrive at the US-Mexico border to stay in Mexico while their asylum case is pending in the United States. But Kacsmaryk read federal immigration law so narrowly that even President Donald Trump’s version of this program wasn’t harsh enough to comply.
Indeed, as Texas Solicitor General Judd Stone conceded during an exchange with Justice Clarence Thomas on Tuesday morning while the Supreme Court was hearing the case, under Kacsmaryk’s reading of federal law, no administration has ever complied with that law since it was enacted in 1996.
The case is Biden v. Texas, and it concerns what options are available to the federal government when it is confronted with an asylum seeker at the Mexican border. Under Kacsmaryk’s incorrect interpretation of federal immigration law, the government only has “two options vis-à-vis aliens seeking asylum: 1) mandatory detention; or 2) return to a contiguous territory.”
Kacsmaryk’s reading isn’t just wrong, it is obviously wrong. On its face, federal immigration laws give the government at least four options when confronted with an asylum seeker at the Mexican border. It can do what Kacsmaryk says, or it can grant parole to someone seeking admission to the United States “for urgent humanitarian reasons or significant public benefit.” And, when parole isn’t available, the government can also release an immigrant into the United States on “bond of at least $1,500.”
As Justice Brett Kavanaugh noted during the oral arguments, the case largely turns upon the proper meaning of the words “significant public benefit.” Arguing on behalf of the Biden administration, US Solicitor General Elizabeth Prelogar said that these words permit the government to reserve its limited detention space for immigrants who present a danger to the public or who might be a flight risk, and to parole other immigrants.
It’s debatable whether Prelogar offered the best possible interpretation of this statute, but her case was bolstered by the fact that Stone was unable to offer a coherent alternative interpretation. At one point in the oral arguments, at least five different justices, including conservatives Kavanaugh and Amy Coney Barrett, seemed to take turns castigating Stone for being unable to provide a coherent answer to one of the most important questions in the case.
Stone’s inability to offer a good answer to this question, combined with the fact that his interpretation of the law would lead to truly absurd results — as Justice Elena Kagan noted in a particularly heated contention with Stone, Texas’s reading of the law could give the Mexican government significant power to extort the United States — seems to have been enough to convince most of the Court that Kacsmaryk must be reversed.
That said, it remains likely that the Court will send the case back to Kacsmaryk to resolve some lingering issues. And, given Kacsmaryk’s past performance, it seems overwhelmingly likely that he will bend over backward to rule against the Biden administration — no matter what the law actually says.
It may be quite a while, in other words, before President Joe Biden and his administration regain their lawful authority to end the Remain in Mexico policy.
Kacsmaryk seized control over much of the United States’ foreign policy
Under Kacsmaryk’s incorrect reading of the statute, the United States must either return every asylum seeker who arrives at the Mexican border to Mexico, or detain them at a facility within the United States. But the United States has only a fraction of the detention facilities it would need to detain every single asylum seeker — at one point Tuesday, Chief Justice John Roberts quipped that the federal government may only have enough detention capacity for 2 percent of the relevant population.
That means the country has to do something about the other 98 percent of migrants, and, under Kacsmaryk’s approach, they must be returned to Mexico.
But that approach creates an obvious problem. The Mexican government must consent before the United States can send a flood of asylum seekers back across its border, and if it does not consent, that means that the United States could not possibly comply with the law — at least as Kacsmaryk understands it.
The other problem is that, if Mexico knows that the United States government is under a court order requiring it to return Central American migrants to Mexico, it can demand extraordinary concessions before it permits the US to do so.
As Kagan pointed out, “Mexico can change its mind any day.” It can make one set of demands today, then make another, more onerous set of demands tomorrow. If the Biden administration believes that it is not in the United States’ interest to comply with Mexico’s demands, its only option is to seek relief from a right-wing judge known for his extreme ideology. (Kacsmaryk, previously a lawyer with a Christian conservative law firm, once labeled being transgender a “mental disorder,” claimed that gay people are “disordered,” and denounced what he called a “sexual revolution.”)
The Supreme Court, moreover, has long warned judges not to get involved in these kinds of foreign policy disputes. As the Court said in Kiobel v. Royal Dutch Petroleum Co. (2013), judges should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”
The Supreme Court bears much of the blame for placing the United States in this precarious position with Mexico. Last August, the Court handed down a surprising order which left Kacsmaryk’s decision in place while the case worked its way through appeals. That means that, for the last several months, the Remain in Mexico policy has been in place, and the United States has been forced to deal with Mexico — under threat of a contempt order from Kacsmaryk.
Now, however, a majority of the Court appears to be ready to reject at least some of Kacsmaryk’s reasoning.
What does “significant public benefit” mean?
No justice appeared sympathetic to Kacsmaryk’s claim that the United States only has two options when an asylum seeker arrives at the Mexican border. Even Justice Samuel Alito, the Court’s most reliable Republican partisan, seemed to concede that federal law permits some asylum seekers to be granted parole — although he insisted that this determination must be made on a “case-by-case” basis.
But, as Solicitor General Prelogar explained, the government does make these determinations on a case-by-case basis. Asylum seekers are interviewed by immigration officials, they must submit to a background check, and they are screened to see if they’ve ever entered the United States before and fled immigration officials.
The purpose of this process is to identify immigrants who may either present a danger to Americans or who might be a flight risk, and thus should not be granted parole.
Prelogar spent much of her argument time responding to questions about whether a statute permitting immigrants to be granted parole “for urgent humanitarian reasons or significant public benefit” was broad enough to permit parole to be granted to the tens of thousands of asylum seekers who cannot be detained because the government lacks the capacity to detain them.
Under Prelogar’s argument, the public benefits from ensuring that the government’s limited detention capacity is reserved for “high-priority” cases, such as for immigrants suspected of violent crimes or terrorism. And the public also benefits if the United States does not have to make concessions to Mexico in order to maintain the Remain in Mexico program.
Stone, meanwhile, struggled to offer an alternative interpretation of the words “significant public benefit.” At one point, after he spent several minutes bobbing and weaving in the face of multiple justices’ questions trying to pin him down on this issue, Justice Barrett seemed to cut him off — telling him that these are questions “which you have to surmount” to prevail.
Kavanaugh seemed to believe that the words “significant public benefit” are sufficiently ambiguous that it may make sense to simply defer to the Biden administration’s interpretation of them. We “give a lot of deference to agencies” on these sorts of interpretative questions, Kavanaugh told Stone.
If Kavanaugh and Barrett vote with the Biden administration, it’s difficult to see how Stone could prevail. And Chief Justice Roberts, who told Stone at one point that “Congress may want detention but it hasn’t provided the money” to detain everyone, also seemed inclined to vote with the administration.
So that’s good news, both for asylum seekers and for anyone who believes that policy should be set by an elected president and his administration, and not by unelected judges like Kacsmaryk.
But there is one catch.
This case could still go on for a long time
Though Tuesday’s arguments largely focused on Kacsmaryk’s misreading of the statute, there’s also another issue lingering in this case. When the government makes a policy change, it typically must explain why it did so. The Supreme Court’s August order allowing Kacsmaryk’s order to remain in effect suggested that the Biden administration did not adequately explain its decision to end the Remain in Mexico policy — though the administration released a new memorandum in October that offers a more detailed explanation.
Some of the justices, most notably Kavanaugh, asked some questions suggesting that they might send the case back down to Kacsmaryk to determine whether this October memorandum is sufficient to end Remain in Mexico. And, if Kacsmaryk gets his hands on this case again, he’s likely to seize that opportunity to sabotage the Biden administration one more time.
Alito — and to a lesser extent Justices Thomas and Neil Gorsuch — asked a few questions about a jurisdictional question that the Biden administration mentioned in a footnote in its brief. This may be an effort by Alito to draw this case out even longer by ordering the parties to submit additional briefings on this jurisdictional issue before the case can be resolved.
And, for every minute that the Court leaves this case unresolved, Kacsmaryk’s order remains in effect.
It is possible, in other words, that even if the Republican Supreme Court ultimately allows President Biden to set policy compliant with federal law, they may try to delay their resolution of the case to frustrate him a little while longer.
Correction, April 27, 9:10 am: An earlier version of this story listed the incorrect legal name for the program known as “Remain in Mexico.” It is the Migrant Protection Protocols.