Wednesday, August 25, 2021

More on Supreme Court's Order Keeping MPP in Place


Official Supreme Court Photo

Late yesterday, Kit Johnson posted on the Supreme Court's order refusing to stay the injunction of the rescission of the Migrant Protection Protocols, the "Remain in Mexico" policy.  Last Friday, Justice Alito had stayed the lower court injunction while the Court considered the stay application.  For background on the MPP and the litigation over it, see Amy Howe's analysis on SCOTUSBlog.

In denying the stay, the Court offered more of an explanation than was necessary.  Rather than simply denying the stay without comment, the Court explained that "[t]he applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. See Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020) (slip op., at 9- 12, 17-26)." (bold added).  By suggesting that the rescission was in fact arbitrary and capricious, the statement is likely to shape the court of appeals' review of the case, with which the Court said it was not intending to interfere.   

The Regents decision cited by the Court order, of course, famously rejected the Trump administration's attempted rescission of the Deferred Action for Childhood Arrivals (DACA) policy as "arbitrary and capricious" in violation of the Administrative Procedure Act.  Chief Justice Roberts wrote the DACA decision and joined the majority in denying the stay here.  Will the victory in the DACA case may come back to haunt Democrats as they seek to reverse Trump administration immigration policies? Justice Breyer, Justice Sotomayor, and Justice Kagan would have granted the stay application.

I received the following statement on the ruling by e-mail from Kate Melloy Goettel, Legal Director of Litigation at the American Immigration Council

"Thousands of people have suffered the horrible consequences of the Migrant Protection Protocols. The Supreme Court has now upheld the Texas court's decision and, instead of keeping MPP a stain in the history books, it will continue to be a present-day disaster. 

“Forcing vulnerable families and children to wait in provisional camps in Mexico puts their lives at risk, while also making it nearly impossible for them to access the asylum process. The Biden administration can and must work to terminate the policy again immediately. Rather than turning away people fleeing harm, we should ensure people have a fair day in court.”


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