The US Supreme Court delivered an extraordinary immigration order this week.
It was a stamp of approval for former president Donald Trump’s “Remain in Mexico” border program — officially called the Migrant Protection Protocols — which was adopted in early 2019. The controversial policy forced certain asylum seekers arriving at the US-Mexico border to stay in Mexico to await their hearings. The Supreme Court’s order allows a lower court ruling ordering the Biden administration to reinstate the program.
Not only does the order break with longstanding legal precedent, it also underscores a damning reality that has been hard to contend with — that Trump’s inhumane and anti-immigrant agenda is going to have a long tail, one that may last decades.
It cannot be overstated how cruel and punitive Remain in Mexico was on the ground. By forcing more than 71,000 asylum seekers, mainly from Central America or Cuba, to wait in Mexico, the US government was putting these already vulnerable individuals at greater risk. According to human rights advocates, there were more than 1,500 publicly reported cases of murder, rape, torture, kidnapping, and other types of assault perpetrated against asylum seekers forced to wait in Mexico under the policy. MPP led to the creation of the first refugee tent camp at the border, in Matamoros, Mexico, where more than 2,000 migrants were living in miserable conditions.
That such a heinous policy has been affirmed comes in no small part due to the “anti-immigrant judicial pipeline,” as an immigration law attorney called it. Although MPP hasn’t been in place since the pandemic began in March of last year, the Biden administration moved to officially terminate it in June. But a lawsuit brought by two states — Texas (naturally) and Missouri (strangely) — challenged the policy’s cancellation by Biden. A US district court judge in Amarillo, Texas, who was appointed by Trump, sided with the plaintiffs in a ruling derided by immigration analysts as highly flawed (one expert said the “decision reads something straight off of Fox News”).
When the Justice Department appealed, the conservative Appeals Court for the Fifth Circuit upheld it. Then came the blow from the Supreme Court this week denying an emergency appeal from Biden. The order stated that the Biden administration probably violated federal law when attempting to end the program and required it to comply with the lower court’s decision.
Technically, the case is still on appeal; but to comply with the court, the Biden administration has to make a “good faith effort,” per the lower court ruling, to reinstate MPP while the case continues. It does, however, still allow the Biden administration to try again to end the program. Biden must not give up the fight. His administration must double down on his attempt with a more aggressive legal strategy that leaves nothing to chance.
Because Remain in Mexico requires the cooperation of a foreign government, the high court’s ruling has foreign affairs implications. As others have noted, SCOTUS is allowing the federal judge appointed by Trump to effectively make foreign policy, which the Supreme Court has been wary of meddling with — and for good reason. “Suppose, for example, that Mexico agrees to work with the United States to reinstate Trump’s policy, but only if the United States agrees to turn over its entire supply of COVID-19 vaccines,” wrote legal analyst Ian Millhiser. “Or only if the United States agrees to fork over a trillion dollars.”
Of course, Mexico is not bound by the court’s decision. It’s unclear what Mexico will do with its newfound leverage. But why wouldn’t they exercise it? Nor is it apparent what a new iteration of Remain in Mexico would look like.
The Trump administration had claimed MPP would work as deterrence. In reality, it was “a humanitarian and due-process disaster,” Claudia Flores, of the Center for American Progress, said in a statement. The policy allowed Trump to outsource the issue to our neighbor south of the border — a Mexican shanty town became Trump’s much-maligned wall. It also enabled the United States to flout the fundamental premise behind the asylum process: We are a safe haven for legitimate cases, not a country that sentences asylum seekers to danger in a foreign country.
Even more shameful, earlier this month news reports surfaced that some officials in the Biden administration were considering adopting a gentler version of MPP to deal with migrants showing up at the border, the highest number in two decades. That shows just how an ugly policy from a former president risks becoming a permanent stain.