The Supreme Court launches a 'political torpedo' right at the Biden administration

On Tuesday night, the Supreme Court announced a consequential decision that amounted to an aggressive assertion of judicial authority against President Joe Biden.

In a four-sentence order, the justices left in place a lower court's injunction preventing the Biden administration from ending Donald Trump's "Remain in Mexico" policy, which left many asylum-seekers unable to enter the United States as their cases proceed through the long and arduous process. Essentially, the court is saying Biden has to continue to Trump's policy because he didn't end it in the right way. District Judge Matthew Kacsmaryk, who was appointed by Trump, had previously ordered Biden to continue the policy on the grounds that the decision to reverse it was "arbitrary and capricious." The Supreme Court has upheld that procedural move, which is now expected to stay in place as the litigation proceeds.

The initial ruling and the injunction were highly criticized when they came down, with many critics arguing that they represented extreme overreach by a conservative judge trying to undermine a politically opposed administration. Vox's Ian Millhiser said Judge Kacsmaryk didn't even understand the law he referenced:

Judge Matthew Kacsmaryk's opinion in Texas was wrong for many reasons, including that he completely misread federal immigration law. Kacsmaryk wrote that a 1996 federal law only gives "the government two options vis-à-vis aliens seeking asylum: (1) mandatory detention; or (2) return to a contiguous territory." Federal immigration law actually gives immigration officials several options, including granting "parole into the United States" to individual immigrants or releasing the immigrant on "bond of at least $1,500."
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The most obvious stakes in this case are whether thousands of migrants will be forced to live in harrowing conditions — without "stable access to housing, income, and safety," according to Homeland Security Secretary Alejandro Mayorkas — because of an egregious misreading of federal law.
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Remain in Mexico was implemented in early 2019, and effectively suspended in March 2020, because the government imposed stricter, temporary border restrictions in order to reduce the spread of Covid-19. Thus, Kacsmaryk's opinion rests on the improbable claim that a federal law enacted in 1996 requires the government to implement a policy that was only in effect for 14 months, and that wasn't implemented until nearly a quarter-century after the 1996 law took effect.

Now, the Supreme Court's conservatives have said that the judge's injunction will remain in place, fulfilling Milhiser's fears. All three liberal justices on the court dissented from the decision, though there was no written opinion of the court nor any dissents.

"The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious," the order said. It cited the 2020 decision in the case of Department of Homeland Security v. Regents of the University of California, in which the court ruled that the Trump administration couldn't end the DACA program that protected undocumented immigrants who had come to the U.S. as children from deportation. Chief Justice John Roberts had been the lone conservative in the majority in that ruling.

"Absolute insanity. SCOTUS' conservative majority repeatedly cleared away lower court injunctions so that Trump could implement his immigration agenda. Now it lets a single district court judge dictate foreign policy for the Biden administration. This is beyond outrageous," said Slate's Mark Joseph stern.

Many critics echoed the point that the court was generally deferential to the Trump administration on immigration and foreign policy. It left in place Trump's ban on migrants from Muslim countries, despite clear evidence that it was inspired by racist animus.

In this case, the Justice Department argued that the Remain in Mexico policy involves the president's engagement with foreign countries, which the court has generally concluded should be largely protected from judicial interference. But now the right-wing majority has abandoned those concerns.

Stern noted that the court's demands of the executive branch may not even be possible: "I have no idea how the Biden administration can negotiate a revival of Remain in Mexico immediately. No one does. It may be impossible. Set aside the immense suffering that the conservative justices just inflicted on migrants. From a geopolitical standpoint, this is demented."

"This was the first test of whether a conservative Supreme Court majority would follow the same rules it did under Trump when it comes to immigration and the President—and they have failed the test. This is a political torpedo aimed directly at the Biden administration," said Aaron Reichlin-Melnick, a lawyer at the American Immigration Council. "The lower courts got dozens of facts wrong, wildly misstated the law, and ordered the Executive to torpedo delicate foreign relations—and the Supreme Court, which until Biden took office blocked nearly all immigration injunctions when requested by the DOJ, just let them do it."

He continued: