Supreme Court says Biden administration must comply with ruling to restart ‘Remain in Mexico.’

Ruling says there is not adequate reason to stop ‘remain in Mexico’ policy

WASHINGTON — The Supreme Court on Tuesday said the Biden administration must comply with a lower court’s ruling to reinstate former President Donald Trump’s policy that required many asylum seekers to wait outside the United States for their cases to be decided.

The administration had asked the court to put on hold a federal judge’s order that the “remain in Mexico” policy, known as Migrant Protection Protocols, had to be immediately reimplemented. U.S. District Judge Matthew Kacsmaryk ruled earlier this month that the Biden administration did not provide an adequate reason for getting rid of the policy and that its procedures regarding asylum seekers who enter the country were unlawful.

Over the objections of the three liberal justices, the court’s conservative majority agreed that the administration had not done enough to justify changing the policy.

The administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court said in a short, unsigned order. In such emergency matters, the court often does not elaborate on its reasoning.

It said Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan would have granted the administration’s request. The three also gave no reason.

The action could be an ominous sign for the new administration. The court is considering a request that it dissolve the pandemic-related evictions moratorium implemented by the Centers for Disease Control and Prevention, about which the court’s most conservative justices have already expressed skepticism.

The court often showed deference to the Trump administration in such emergency matters, including when the migrant protocalls were first implemented.

Acting Solicitor General Brian Fletcher was explicit about that in his brief to the court.

“In recent years, this Court has repeatedly stayed broad lower court injunctions against Executive Branch policies addressing matters of immigration, foreign policy, and migration management,” Fletcher wrote. “It should do the same here.”

But in its order Tuesday night, the court cited a decision from 2020 in which it stopped the Trump administration from dismantling the Obama-era program Deferred Action for Childhood Arrivals, which protected undocumented immigrants who were brought into the country as children.

In that case, Chief Justice John Roberts sided with the court’s liberals in saying the Trump administration had failed to show that ending the program was not arbitrary and capricious.

“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote in the 2020 decision. “The wisdom of those decisions is none of our concern. Here we address only whether the Administration complied with the procedural requirements in the law that insist on ‘a reasoned explanation for its action.’ “

The difference is that decision was made after full briefing and argument, rather than on an emergency request to maintain the status quo while appeals continue.

Immigration-rights groups denounced Tuesday’s Supreme Court order and urged the administration to continue its efforts to rescind the program rather than implement it.