Court Upholds Biden Administration's Reversal of MPP, for now

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled this week in Biden v. Texas that the Biden Administration's revocation of the Trump Administration's Migrant Protection Protocols did not violate the Immigration and Naturalization Act.

The ruling is a victory for the Biden Administration and its effort to reverse MPP. But at the same time, the Court gives the lowers courts yet another shot at halting the reversal.

The Trump Administration's MPP sent certain immigrants arriving from Mexico back to Mexico pending their deportation proceedings. The Administration cited authority for the move in a provision of the INA that that said that the Secretary of Homeland Security "may return the alien to that territory pending a proceeding [to determine deportability]." 8 U.S.C. Sec. 1225(b)(2)(C).

The Biden Administration revoked MPP, however, focusing on the discretionary power in that section ("may return"), and the many policy problems that MPP wrought.

Texas and Missouri sued, arguing that the revocation violated the INA and the Administrative Procedure Act. As to the INA, the States focused on a different section, which says that immigrants "shall be detained" pending their deportation hearings. 8 U.S.C. Sec. 1225(b)(2)(A). As to the APA, the States claimed that the Administration didn't sufficiently explain its decision to revoke.

The Biden Administration countered that (C), above, is discretionary, not mandatory, and that Congress hadn't appropriated nearly enough money for the Administration to detain all immigrants under (A), above.

Lower courts ruled for the States. They held that the Biden Administration violated (A), and that it failed to engage in reasoned decisionmaking in violation of the APA. After the Administration issued a new final action reversing MPP, the appeals court held that this was merely part of its first reversal, and therefore not separately reviewable (and leaving the ruling that the revocation violated the INA on the books).

The Supreme Court reversed and ruled for the Biden Administration on the INA claim. The Court held that (C)'s "may" means "may," not "must" or "shall," and therefore the INA doesn't require the Biden Administration to retain MPP. The Court said that text, prior practice, and the President's powers over foreign affairs all supported this conclusion.

The Court said that the lack of resources to detain all immigrants didn't affect this result. In particular, the Court rejected the argument that lack of resources forced the Administration to return immigrants to Mexico. That argument went like this: (1) Under the INA, the government must detain all immigrants pending deportation hearings; (2) if it can't detain them, it may either (a) return them to Mexico or (b) release them into the United States pending deportation hearings; (3) the government can't justify a blanket policy of releasing immigrants into the United States under (b), because such a policy isn't justified under the government's parole authority in the INA, which requires, among other things, a "case-by-case" determination that parole is based on "urgent humanitarian reasons or significant public benefit."

The Court simply said that it didn't need to resolve the complicated underlying questions in this argument, because (C) clearly grants the government discretionary power, and therefore does not mandate MPP.

As to the APA, the Court remanded the case for determination whether the Administration's second effort to revoke MPP was arbitrary, capricious, an abuse of discretion, or contrary to law. This part of the ruling means that the challenge isn't over . . . and that the Biden Administration's revocation may fail yet.

Justice Kavanaugh concurred, emphasizing that the lower courts should be deferential to the Biden Administration on remand, given that the case implicates foreign-policy concerns.

Justice Alito wrote the principal dissent, joined by Justices Thomas and Gorsuch. He argued that the INA clearly requires the Administration to detain immigrants pending deportation hearings, and, if not, to hold them in Mexico.

Justice Barrett dissented, too, joined by Justices Thomas, Alito, and Gorsuch. She argued that the Court should remand the case for a determination whether the lower courts have jurisdiction in the first place, under a jurisdiction-limiting provision in the INA. (Justice Barrett also explicitly agreed with the Court's analysis on the merits. Justices Thomas, Alito, and Gorsuch did not sign on to that portion (just a sentence) of her opinion.)