By Lisa Soronen
The 5th Circuit preliminarily ordered the Biden administration to reinstate the Trump administration’s Migrant Protection Protocols (MPP), also known as “Remain in Mexico," on Aug. 15. This policy authorizes the federal government to “return certain third-country nationals arriving in the United States to Mexico or Canada for the duration of their removal proceedings.”
Five days later, the U.S. Supreme Court allowed the 5th Circuit’s order to go into effect while litigation continues on this issue in the lower court.
This case has a long history. In March 2020, the court allowed the Trump administration to enforce the policy after a federal district judge in California blocked it. In October 2020, the Supreme Court agreed to review a 9th Circuit decision holding that MPP is likely inconsistent with federal immigration law and “treaty-based non-refoulement obligations” codified in federal law. (Non-refoulement is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion.")
The Supreme Court decided not to review the 9th Circuit’s decision in June 2021 after the Biden administration issued a memorandum rescinding the policy.
In August 2021, Texas and Missouri asked the 5th Circuit to require the Biden administration to reinstate MPP. The federal Administrative Procedures Act (APA) prohibits federal agencies from taking action that is “arbitrary and capricious.” The 5th Circuit concluded that terminating the MPP likely violated the APA because the memorandum failed to consider several “relevant factors” and “important aspects of the problem.” These included the states’ legitimate reliance interests, MPP’s benefits, potential alternatives to MPP and relevant federal immigration law.
In asking the Supreme Court to freeze the 5th Circuit's order, the Biden administration argued that the secretary’s rescission memorandum “easily satisfies the APA’s deferential standard.” According to the Biden administration, the secretary thoroughly reviewed the program and “determined that, on balance, any benefits of maintaining or now modifying MPP are far outweighed by the benefits of terminating the program.”
Texas and Missouri responded that the 5th Circuit was correct that rescinding MPP was arbitrary and capricious. According to these states: “Secretary Mayorkas could not terminate MPP while ‘fail[ing] to consider [its] main benefits,’ including ‘deter[ing] aliens . . . from attempting to illegally cross the border.’ DHS even ‘ignore[ed] its own previous assessment’ finding that MPP ‘demonstrated operational effectiveness.’ The Secretary also failed to consider the States’ reliance interests or alternative policies within the ambit of MPP.”
The Supreme Court’s order rejecting the Biden administration’s request to freeze the 5th Circuit’s decision was very brief. Justice Samuel Alito merely stated that 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.” He also stated that the court’s decision should “not be read as affecting the construction of that injunction by the Court of Appeals,” which stated the Biden administration doesn’t have to restore MPP “overnight.”
Justices Stephen Breyer, Sonia Sotomayor and Elise Kagan would have granted the Biden administration’s request but didn’t state reasons.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.