Supreme Court Allows Biden to End Trump-Era ‘Remain in Mexico’ Policy

The Supreme Court ruled Thursday that the Biden administration has the authority to reverse the Trump administration’s “Remain in Mexico” policy.

The 5-4 decision in Biden v. Texas, authored by Chief Justice John Roberts, was joined by Justices Brett Kavanaugh, Sonia Sotomayor, Stephen Breyer, and Elena Kagan. The majority held that the Biden administration has not violated the Immigration and Nationality Act, and that memoranda issued by the Department of Homeland Security in October repealing the policy represented “final agency action.”

The Court has sent the case back to district court, with instructions to “consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA.”

Since coming into office, President Biden’s DHS has twice sought to rescind the Migrant Protection Protocols, which require certain non-citizens who arrive at the southern border to stay in Mexico while their asylum cases are processed. Texas and Missouri both challenged that federal policy reversal, arguing that it was unlawful under both federal immigration law and the Administrative Procedure Act.

Justices Clarence Thomas and Neil Gorsuch joined Samuel Alito’s dissent, which states that “the majority fail[s] to heed the clear language of the INA,” while Justice Amy Coney Barrett authored her own dissent agreeing with the majority’s “analysis of the merits — but not with its decision to reach them.”

Alito argued that in reviewing whether the Biden administration has complied with the APA, “the District Court should assess, among other things, whether it is ‘arbitrary and capricious’ for DHS to refuse to use its contiguous-territory return authority to avoid violations of the statute’s clear detention mandate; whether the deterrent effect that DHS found MPP produced in reducing dangerous attempted illegal border crossings, as well as MPP’s reduction of unmeritorious asylum claims, is adequately accounted for in the agency’s new decision; and whether DHS’s rescission of MPP is causing it to make parole decisions on an unlawful categorical basis rather than case-by-case, as the statute prescribes.”

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