SCOTUS Issues Its Judgment in 'Remain in Mexico' Case

The Supreme Court’s decision in Biden v. Texas raises questions regarding the future of the Trump-era Migrant Protection Protocols (MPP), better known as “Remain in Mexico.”

• MPP was implemented by Kirstjen Nielsen in January 2019 and allowed DHS to return "other than Mexican" migrants (OTMs) caught entering illegally or without proper documents back to Mexico to await their removal hearings.
• Nearly 70,000 OTMs were sent back across the border under the Trump administration.

Summary:

• While the case was pending, DHS Secretary Alejandro Mayorkas issued a memo terminating MPP, an action that was rolled into the pending case brought by the states
• Judge Kacsmaryk issued an order enjoining the termination of MPP on August 13
• The government appealed that decision and asked a three-judge panel of the Fifth Circuit to stay the injunction, which it declined to do
• Despite the court's order, the Biden administration was slow and reluctant to return illegal migrants back to Mexico
• In December, the first 191 migrants were sent back under section 235(b)(2)(C) of the INA, and through the end of June, just 5,733 migrants have been returned pursuant to that provision and the court’s order

The Court's issuance of its judgment on August 1 officially guts Judge Kacsmaryk's order, but it also sends the matter back to the Fifth Circuit to determine whether Mayorkas' October 29 memo terminating MPP violates the INA and the Administrative Procedure Act (APA), which guides agency rulemaking.

• The secretary's analysis in the October 29 directive is much more robust (and better reasoned) than his rationale in the June 1 version, but the states will likely argue that may or may not be required under the APA.

If the Biden administration is successful in lifting an injunction on its termination of CDC orders directing DHS to expel illegal entrants, issued under Title 42 of the U.S. Code, it could cause a humanitarian catastrophe at the Southwest border.

• DHS expects up to 18,000 foreign nationals to enter the United States each day once Title 42 ends, compared to a daily rate of just under 6,400 in June.

Bottom Line

• More than half a million illegal entrants monthly would make the administration look even more feckless at the U.S.-Mexico line than it already is, possibly spurring endangered Democratic centrists to take immediate action to staunch the flow.
• Of course, that also means that the president may be dealing with a more pro-enforcement GOP in control during the 118th Congress, which will convene in January

Biden thinks Joe Manchin and Kyrsten Sinema are tough nut to crack? Wait until he gets a load of Jim Jordan

• If Republicans win the House in November, Mayorkas will be spending plenty of time with the new Buckeye state chairman - unless the secretary ducks out of office beforehand

Biden's limited use of DHS's Remain in Mexico reveals that the program is just a tool that Congress has given DHS to gain operational control of the Southwest border

• The border will only be secure once the Biden administration finds the will and desire to secure it.
• Will and desire are two emotions no court can order. The voters, however, are a different story 

https://cis.org/Arthur/SCOTUS-Issues-Its-Judgment-Remain-Mexico-Case