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The Supreme Court hands Biden the smallest possible victory in its “Remain in Mexico” case

The Biden v. Texas decision rejects a Trump judge’s absurd reading of federal law, then sends the case right back to that same judge.

In early morning darkness, a long line of people, several children among them, wait by a tall brown wall outdoors, while uniformed Border Patrol officers talk to those in the front.
A US Border Patrol agent checks for identification of immigrants after they’ve crossed the border from Mexico, in Arizona on June 22.
Qian Weizhong/VCG via Getty Images

Everything about the Supreme Court’s handling of Biden v. Texas, an important immigration decision it handed down on Thursday, emphasizes how easily the Court can sabotage President Joe Biden’s policies — even as it rules narrowly in Biden’s favor.

The case involves the so-called “Remain in Mexico” program, also known as the Migrant Protection Protocols, a policy implemented by President Donald Trump that required tens of thousands of immigrants seeking asylum in the United States to, well, remain in Mexico while their cases were being processed. The Biden administration announced in a June 1, 2021 memo from Secretary of Homeland Security Alejandro Mayorkas that it would end this program — noting, among other things, that it forced many migrants to live in squalid conditions without “stable access to housing, income, and safety.”

But then Judge Matthew Kacsmaryk, a Trump judge known for his extreme ideology — Kacsmaryk has labeled being transgender a “mental disorder,” claimed that gay people are “disordered,” and denounced what he called a “sexual revolution” — ordered the Biden administration to reinstate the program last August.

In the Biden decision handed down on Thursday, six justices — the three liberal justices plus Chief Justice John Roberts, and Justices Brett Kavanaugh and Amy Coney Barrett — all agree that Kacsmaryk misread federal immigration law when he held that the federal government is required to maintain the Trump-era program. (Technically, Barrett dissented from the Court’s holding, stating in her opinion that she agrees “with the Court’s analysis of the merits,” but she would have sent the case back to lower courts to consider a jurisdictional issue.)

Indeed, as Roberts indicates in his opinion for the Court, Kacsmaryk misread a key provision of federal law so egregiously that, if the Trump judge’s reasoning is taken seriously, no president has ever complied with this law since it was enacted 26 years ago.

The Court’s decision in Biden goes a long way toward reaffirming that Joe Biden is the president, Alejandro Mayorkas is secretary of Homeland Security, and Matthew Kacsmaryk is neither of these things.

But, while the Court’s rejection of Kacsmaryk’s misreading of federal law is a victory for Biden, it is likely to be a hollow one. Although the Court decides the important issue of whether federal immigration law requires a Remain-in-Mexico-style policy (it doesn’t), the justices send the case back down to Kacsmaryk to resolve a few other lingering questions, including whether Mayorkas adequately explained the administration's decision to end the program in an October memorandum.

Given Kacsmaryk’s past behavior, and his commitment to an extraordinarily conservative ideology, it is very likely that he will find a new excuse to order the Biden administration to reinstate the Remain in Mexico program once the case is back in his hands. And Kacsmaryk’s new decisions will be reviewed by the US Court of Appeals for the Fifth Circuit, an extremely conservative court that has thus far been complicit in Kacsmaryk’s efforts to seize control of much of US border policy.

Indeed, the Supreme Court has also been complicit in these efforts. Last August, not long after Kacsmaryk handed down his initial decision appointing himself border czar, the Supreme Court rejected the Biden administration’s request to block that decision — claiming that Mayorkas made a paperwork error in his initial June memo suspending Remain in Mexico.

Kacsmaryk’s decision, in other words, has now been in effect for nearly a year. While the Biden administration most likely will take steps quickly to end Remain in Mexico, Kacsmaryk could once again put a stop to that. And it could be a year or more before the Supreme Court gets around to reversing whatever order Kacsmaryk hands down after the case is sent back to him.

By slow-walking this case, in other words, the Court has ensured that Judge Kacsmaryk, and not Secretary Mayorkas, will exercise many of the secretary of Homeland Security’s most important policymaking powers. And, at this rate, President Biden could be near the end of his term by the time this case is fully resolved and he finally regains the power to end Remain in Mexico for good.

Kacsmaryk’s reading of federal immigration law is embarrassingly wrong

The crux of Kacsmaryk’s decision is that federal immigration law only gives “the government two options vis-à-vis aliens seeking asylum: 1) mandatory detention; or 2) return to a contiguous territory.” That is, when a person arrives at the Mexican border seeking asylum, the government must either lock that person up, or require them to stay in Mexico until their asylum case is resolved.

Under this incorrect reading of immigration law, even the Trump administration was insufficiently cruel to asylum seekers. Trump’s version of the Remain in Mexico policy exempted non-Spanish speakers. But Kacsmaryk’s reading of federal law would not permit such exceptions.

Kacsmaryk arrived at his wrongful conclusion by looking at just two provisions of federal law. One provides that the government “may” return an immigrant who arrives on land at the Mexican or Canadian border to Mexico or Canada while that person’s immigration case remains pending in the United States. The other provision states that most such immigrants “shall be detained.”

Thus, Kacsmaryk concluded that the government has only two options, detention or return to Mexico.

But, as Roberts explains in his opinion, there are many problems with this interpretation of federal law. For starters, the law explicitly gives the government several options — not just two — when confronted with an asylum seeker at the Mexican border. Among other things, the government may “parole into the United States” an immigrant seeking admission to this country “for urgent humanitarian reasons or significant public benefit.” Kacsmaryk’s framework ignores this option.

The United States, moreover, has only a tiny fraction of the detention capacity it would need to detain every asylum seeker who arrives at the Mexican border. And the US cannot unilaterally decide to send tens of thousands of asylum seekers to Mexico — the Mexican government has to agree to such an arrangement.

That means that, under Kacsmaryk’s reading of federal immigration law, it may be impossible for the federal government to follow the law, because the Mexican government may refuse to take in immigrants that the United States lacks the capacity to detain.

As Roberts explains in his opinion, courts are supposed to “avoid ‘the danger of unwarranted judicial interference in the conduct of foreign policy.’” Kacsmaryk, by contrast, effectively forced the United States to enter into a diplomatic negotiation with Mexico — in order to reinstate a program that neither government supports.

Kacsmaryk is likely to sabotage Biden again

Even though the Supreme Court rejects Kacsmaryk’s egregious misreading of federal law, it leaves him with significant power to sabotage Biden — and to order Remain in Mexico reinstated one more time.

First of all, the Supreme Court concluded last August that Mayorkas’s original June memo ending the Remain in Mexico program did not adequately explain why he did so. (It’s well established that the federal agencies must explain themselves when they change existing policies, although it’s more debatable whether the June memo failed to do so.) This is why Mayorkas issued a longer memo in October providing a more full-throated explanation for the Biden administration’s policy.

Rather than determining whether this new memo is sufficient, however, the Supreme Court sends the case back down to Kacsmaryk to consider this question. So Kacsmaryk can easily seize control of border policy again by finding some fault with this new memo.

The Supreme Court’s decision also allows Kacsmaryk to determine whether the Biden administration is properly exercising its authority to grant parole to some immigrants “for urgent humanitarian reasons or significant public benefit.” That gives Kacsmaryk another possible rationale to sabotage Biden’s policies.

Perhaps Kacsmaryk will get his hands on this case again, and suddenly decide to act like a fair and impartial judge who is loyal only to the law. Given his past behavior, however, this outcome seems unlikely.

All of which is a long way of saying that this case is likely to go on for a very long time. And for as long as it does, thousands of immigrants are at the mercy of one of the most ideological judges in the country.