Sunday, August 15, 2021
Judge Matthew Kacsmaryk issued a permanent, nationwide injunction halting the Biden Administration's rescission of the Trump Administration Migrant Protection Protocols policy. The court ruled that the Biden Administration's rescission was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," in violation of the Administrative Procedure Act.
The sweeping and aggressive ruling also directs the Administration to provide monthly updates to the court on immigration action at the Southwest Border in order "[t]o ensure compliance with this order."
The ruling means that the Biden Administration will have to reinstate MPP, unless and until it comes up with a more thorough justification for rescission . . . and unless and until it can find the resources to detain immigrants domestically pending their asylum or deportation proceedings.
The court stayed the ruling for seven days, however, to give the Biden Administration time to seek a stay pending appeal. The Administration surely will seek a stay and appeal; there's much more to come in this case.
The case, Texas v. U.S., tests the Biden Administration's rescission of the Trump Administration's MPP, under which DHS sent non-citizens to Mexico pending their removal proceedings. The Biden Administration rescinded the program and explained its decision in a June 1 memo. (Here's the DHS MPP info page.)
The court ruled that the memo didn't provide a sufficient justification for rescission under the Administrative Procedure Act. It said that the memo failed to consider the putative benefits of MPP, the costs of revoking MPP, the states' reliance interests in MPP, and any other policies short of termination that would meet its interests. Moreover, the court said that the memo's stated justifications were arbitrary.
The court vacated the memo and ordered the Biden Administration to reinstate MPP, unless and until the Administration could properly justify rescission and demonstrate that it can detain immigrants domestically pending their asylum or deportation proceedings.
(That last bit is in response to the Administration's argument that it lacks sufficient resources to detain all immigrants domestically pending their proceedings--and that's why they parole many of them. The court declined to treat the relative lack of resources as a legal constraint on the Administration's ability to detain, however, and instead focused on the INA's language that DHS "must" detain immigrants. (If Congress tells the Administration that it "must" detain, but only allocates a portion of funding to achieve that requirement, another understanding would be that Congress instructs the Administration that it "must" detain only up to the resources that it allocated.))
Remarkably, the court ordered the Administration to report monthly on border activity in order "[t]o ensure compliance" with its order.
The Administration will undoubtedly seek a stay pending appeal from the Fifth Circuit, and then appeal on the merits. This one's only just begun. Stay tuned.