Elections have consequences. Or at least, they are supposed to.
When the American people voted to replace former President Donald Trump with now-President Joe Biden, that should have meant that many of Trump’s policies — including policies governing the US-Mexico border — could be abandoned and replaced by policies supported by Democrats. That is, after all, how democratic republics work.
But, nearly a year and a half into Biden’s presidency, a Trump immigration policy known as “Remain in Mexico” is still in effect. It’s in effect despite the fact that the Biden administration has twice taken the legal steps necessary to rescind it — or at least, the steps that were necessary before one of Trump’s judges got involved.
The fate of this Remain in Mexico policy is now before the Supreme Court in Biden v. Texas, a case that the Court will hear on Tuesday, April 26.
“Remain in Mexico” is the colloquial name for Trump’s Migrant Protection Protocols, which require many immigrants who seek asylum in the United States to stay in Mexico while they wait for a hearing. The Biden administration first announced that it was suspending this program in a June 1, 2021 memo from Secretary of Homeland Security Alejandro Mayorkas.
Mayorkas’s June memo argued that Remain in Mexico drained limited border security resources, required diplomatic negotiations with Mexican officials that “draws away from other elements that necessarily must be more central to the bilateral relationship,” and forced many migrants to live in squalid conditions without “stable access to housing, income, and safety.”
That should have been the end of the policy, for at least as long as Biden is president. But then Judge Matthew Kacsmaryk decided to overrule Biden.
Kacsmaryk is a Trump judge and former lawyer for a Christian conservative law firm. Before his elevation to the bench, he labeled being transgender a “mental disorder,” claimed that gay people are “disordered,” and denounced what he called a “sexual revolution.” In August of 2021, he ordered the Biden administration to reinstate Remain in Mexico.
Kacsmaryk’s opinion rested on the improbable claim that a 1996 immigration law required the federal government to implement an even stricter version of Remain in Mexico than the one that was in effect under Trump — meaning that, if Kacsmaryk is correct, every president since Bill Clinton violated the law, and somehow no one noticed until 2021.
Because Remain in Mexico can only be implemented with the Mexican government’s cooperation, Kacsmaryk’s decision also violated a long line of Supreme Court decisions warning about “the danger of unwarranted judicial interference in the conduct of foreign policy.”
Nevertheless, a week after Kacsmaryk’s decision, the Supreme Court rejected the Biden administration request to block it — over the dissent of the GOP-controlled Court’s three Democrats. The Supreme Court’s order, however, was narrow. It did not weigh in on Kacsmaryk’s creative reading of federal immigration law, and instead faulted Mayorkas for not adequately explaining why the Biden administration chose to end Trump’s policy.
Since then, two significant things have happened. One is that Mayorkas issued a second memo in October, which offers a fuller explanation of the administration’s decision to end Remain in Mexico (the June memo was just seven pages; the new memo is 39 pages). The second is that a Republican panel of appeals court judges embraced Kacsmaryk’s reading of federal immigration law, and effectively declared Mayorkas’s October memo a nullity.
And so it’s now up to the Supreme Court to untangle this mess, and the stakes are enormous. Biden v. Texas will not simply determine whether the Remain in Mexico program can end. It could also allow Trump’s judges to entrench one of Trump’s policies — even when the American people voted to reject Trump.
Kacsmaryk’s reading of federal immigration law is egregiously wrong
The crux of Kacsmaryk’s opinion 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, no president — including Donald Trump — has ever had a border policy that complies with the 1996 law. 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.
Many problems with Kacsmaryk’s opinion should be obvious to anyone who has actually read the relevant statutes. Federal law explicitly gives the government many options when deciding how to handle a particular asylum seeker, and detention or a temporary stay in Mexico are only two of those options.
One statute, for example, provides that the government may grant parole to someone seeking admission to the United States “for urgent humanitarian reasons or significant public benefit.” Parole permits the immigrant to remain in the United States while their case is pending. Another statute permits an immigrant to be released on “bond of at least $1,500.”
Kacsmaryk placed a great deal of weight on a provision of federal law which states that many asylum seekers “shall be detained for further consideration of the application for asylum,” and another provision saying that immigrants arriving from Mexico or Canada “may” be returned to that country while their case is pending. This was the basis for Kacsmaryk’s conclusion that the government only has two options.
But even setting aside the fact that federal law gives the government other alternatives, such as parole or bond, the government still has a a fifth option that Kacsmaryk disregarded: nonenforcement. That’s rooted in a doctrine known as “prosecutorial discretion,” which permits the government to decide how it uses limited law enforcement resources.
The idea behind prosecutorial discretion is that law enforcement officers, prosecutors, and similar officials do not have sufficient resources to target literally every single violation of the law — imagine how difficult it would be, for example, for police to issue a ticket to every single person who drives even a single mile per hour over the speed limit — so they must have discretion to decide when to let things go.
If you’ve ever been pulled over and then let off with a warning, then congratulations! You’ve benefited from prosecutorial discretion.
As a general rule, courts should not second-guess these decisions not to enforce a particular law against a particular individual. As the Supreme Court held in Heckler v. Chaney (1985), “an agency’s decision not to take enforcement action should be presumed immune from judicial review.” This presumption is especially strong in the immigration context. The Court explained in Arizona v. United States (2012) that “a principal feature of the removal system is the broad discretion exercised by immigration officials.”
Indeed, the Court has maintained for more than a century that law enforcement officials retain this broad discretion even when faced with a statute that uses mandatory language — such as the statute Kacsmaryk relied on, which provides that certain asylum seekers “shall be detained.” Hence the Court’s holding in Railroad Company v. Hecht (1877) that “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.”
All of which is a long way of saying that Kacsmaryk’s reading of federal law is so clearly wrong that it’s hard not to attribute his decision either to incompetence or bad faith.
The outcome of the Texas case is likely to turn on a paperwork issue
The Supreme Court’s decision last August to allow Kacsmaryk’s decision to temporarily remain in effect was genuinely shocking. That decision effectively forced the United States government to approach the Mexican government and try to strike a deal reinstating a policy that President Biden opposes — because Mexico had to agree to let asylum seekers remain in that country while their cases are pending in the United States.
Judges, the Supreme Court warned in Kiobel v. Royal Dutch Petroleum Co. (2013), should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” But the Court abandoned this respect for the democratic branches when it ordered an elected president to bow to the foreign policy preferences of a Trump judge.
The Supreme Court’s August decision, however, was only temporary. And it rested on narrow grounds. When a federal agency changes a policy, it typically must provide an explanation of why it did so. And a majority of the justices determined that Mayorkas’s June memo did not provide a sufficient explanation.
In theory, this should be an easy problem to fix. The Supreme Court did not rule in August that Biden could never end the Remain in Mexico program, as Kacsmaryk effectively did. It simply held that Mayorkas must produce a new memo offering a more fulsome explanation, which Mayorkas did in October.
But then the case reached the United States Court of Appeals for the Fifth Circuit, a court dominated by Trump appointees and other right-wing Republicans who think similarly to Kacsmaryk. And a Republican panel of Fifth Circuit judges determined that the October memo has “no present legal effect.”
So, to summarize, the Supreme Court held that the Biden administration cannot end the Remain in Mexico policy until it fleshes out why it did so. But, when the Biden administration issued a new memo complying with the Supreme Court’s order, a Republican appeals court deemed that compliance irrelevant.
The justices, in other words, must answer two important questions in Texas. One is whether Kacsmaryk’s misreading of federal immigration law should stand. But the other is even more basic: whether federal judges who disagree with an administration's policy can keep that policy on ice by constantly erecting new procedural barriers.
Can Republican judges block a policy because it was inadequately explained, then continue to block it after the administration produces a 39-page memo explaining the policy?
If the answer to this question turns out to be “yes,” then we need to ask who actually wields the power of the presidency right now. If the courts can place new procedural barriers between Biden and his preferred policies on the fly, then Biden ceases to be president in any meaningful policymaking sense.
For what it’s worth, I think it is more likely than not that a majority of the justices will side with Biden in this case, and allow his administration to end Remain in Mexico. Among other things, the Biden administration asked the Supreme Court to expedite its handling of the Texas case, and the Court agreed to do so — had it not, the Court might not have decided this case until June of 2023.
This willingness to decide Texas relatively quickly suggests that the Supreme Court isn’t looking to extend Remain in Mexico indefinitely by drawing out this case forever, as the Fifth Circuit seemed to do in its decision.
But even if the justices move quickly, handing down a decision in June that reinstates the Biden administration’s power to set border policy, much of the damage will already be done. Kacsmaryk issued his decision last August. So for the last eight months, Judge Matthew Kacsmaryk, and not an elected president, has dictated US-Mexico policy on immigration.