Wednesday, August 25, 2021
The Supreme Court denied the Biden Administration's request for a stay pending appeal of a lower court order directing the Biden Administration to reinstate the Migrant Protection Protocols program initiated by the Trump Administration. We posted on the lower court's order here.
The ruling means that the Biden Administration must send immigrants along the southern border to Mexico pending their asylum and deportation proceedings, consistent with the MPP, pending the Administration's appeal of the district court's order.
The ruling is a blow to the Biden Administration's effort to halt the controversial program. And while it's only preliminary--the ruling technically only orders the Biden Administration to reinstate the MPP program pending the Administration's appeal on the merits--it also doesn't bode well for the Administration. The very brief order stated that 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." (In support, the Court cited Department of Homeland Security v. Regents of University of California, in which the Court rejected the Trump Administration's effort to rescind DACA as arbitrary and capricious in violation of the Administrative Procedure Act.)
Justices Breyer, Sotomayor, and Kagan indicated that they would have granted the Administration's motion for a stay, but they didn't say why.