A week and a half ago, we Report Missouri and Texas won the Biden administration’s decision to cancel the stay in Mexico policy at the trial court level. As I explained at the time:
The court noted that the Department of Homeland Security (under Trump) found that MPP was effective, despite the flaws in its initial implementation. Therefore, the Department of Homeland Security recommends improvements to the plan. In addition, MPP also faces legal challenges, although these challenges eventually become meaningless after the Biden administration first suspended and subsequently terminated the plan (June 2021).
On April 13, 2021, Texas and Missouri filed lawsuits against U.S. President Joe Biden and relevant U.S. agencies and officials, questioning the suspension of the plan.
In particular, the opinion of Judge Kacsmaryk held that:
- The termination of MPP increases the number of foreigners in the U.S.
- Texas and Missouri are injured due to the increase in the number of aliens living in their states
In addition, Judge Kacsmaryk concluded that the termination of the MPP violated the APA (Administrative Procedure Act) and forced the defendant to violate 8 USC § 1225 (this act provides the government with two options for foreigners seeking asylum-detention or Return to consecutive territories).
Based on his findings, Judge Kacsmaryk permanently ordered and restricted the Biden administration to implement its June memorandum (thus effectively restoring the policy of staying in Mexico).
Judge Kacsmaryk put the application of his order on hold for 7 days to allow time for the government to appeal to the Fifth Circuit Court of Appeals, seeking to suspend the execution of Judge Kacsmaryk’s order before appealing on the merits. The Fifth Circuit rejected the application, and the government appealed to the Supreme Court. Late on Friday night, Justice Alito issued a temporary injunction until today to allow the full court to consider the documents in the case.
With a 6-3 decision later this afternoon, the Supreme Court issued Order Rejected the government’s application for a stay, stating that they “failed to prove that the memorandum of revocation of the immigration protection agreement is not arbitrary and capricious.” (As one might expect, Breyer, Sotomayor and Ka Justice Root disagreed with this decision.)
The Attorney General of Missouri, Eric Schmidt, celebrated the news:
🚨Breakthrough: The Supreme Court agreed with the views of Missouri and Texas by a vote of 6 to 3. It is illegal for Joe Biden to overthrow President Trump’s immigration protection policy or the “Remain in Mexico” policy. The policy will take effect again. #Biden Border Crisis #SCOTUS #Winning
— Eric Schmitt (@Eric_Schmitt) August 24, 2021
Remember, this is not a complete decision on the merits-it is just a ruling, that is, the order of Judge Kacimarik will not be set aside during the appeal of the merits. The end result is that the policy of staying in Mexico is re-effective unless and until the Biden administration wins an appeal on the merits. (Please note that in today’s order, Judge Alito found that although nothing was set in stone until the appeal process was completed, the government failed to prove its possibility of winning.) And, it was indeed a huge victory.
