Shawn Mulcahy for the Texas Tribubne offers details on the lawsuit brought earlier this week by Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt. The states of Texas and Missouri sued the Biden administration in an attempt to restore President Trump's "remain in Mexico" policy, which requires migrants seeking asylum in the United States to wait in Mexico during processing of their claims.
The states allege that the Biden administration’s decision to suspend the remain in Mexico policy was “arbitrary and capricious" ands thus unlawful. The complaint seeks to reinstate the policy.
Most of the claims in the complaint are standard Administrative Procedure Act (APA) claims. For example, the second claim for relief in the complaint is for "Arbitrary and Capricious Agency Action—Failure to Consider State Reliance Interests." Paragraph 91 reads as follows:
"DHS particularly failed to consider whether “there was ‘legitimate reliance’ on the” prior administration’s method of using the MPP as an indispensable tool in bilateral efforts to address the migration crisis by diminishing incentives for illegal immigration, weakening cartels and human smugglers, and enabling DHS to better focus its resources on legitimate asylum claims. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020) (quoting Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996)). That was arbitrary and capricious; where, as here, “an agency changes course ... it must ‘be cognizant that longstanding policies may have engendered serious reliance interest that must be taken into account.'" . . . . [citations omitted]".
Dep’t of Homeland Sec. v. Regents of the Univ. of Cal, of course, is the 5-4 Supreme Court decision finding that the Trump administration's rescission of the Deferred Action for Childhood Arrivals (DACA) policy for being arbitrary and capricious. I do not see the Texas and Missouri suit as going far. Most fundamentally, the state reliance interests alleged in teh second claim for relief in federal immigration enforcement differ significantly from the individual reliance interests at issue in the DACA case. The other claims also are unlikely to get traction. The creative lawyering is more likely to make a political statement than have any legal impacts.