Trump's 'Remain in Mexico' policy is back.

Now what?
Isaac Saul Aug 26, 2021
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.”

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Today’s read: 11 Minutes

A tent city forming at the PedWest border crossing in Tijuana, Mexico, across from San Diego. Photo by Barbara Zandoval on Unsplash

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Quick hits.

  1. Shortly after the U.S. government issued a “high threat” of a terrorist attack in Kabul, two explosions have been reported — one outside the airport and another a suicide bombing near a hotel — on Thursday morning. Local media are reporting 13 people have been killed and dozens more injured. This is a developing story. (The news)
  2. Covid-19 cases are rising in 46 states now, with an average of 1,000 Americans dying a day. (The latest)
  3. Newly sworn-in New York Gov. Kathy Hochul added nearly 12,000 Covid-19 deaths to the state’s total while pledging more transparency than her predecessor Andrew Cuomo. (The update)
  4. President Biden and new Israeli Prime Minister Naftali Bennett postponed their meeting today after news of the explosions in Afghanistan. (The meeting)
  5. U.S. jobless claims stayed near a pandemic low, with 353,000 new claims last week. (The numbers)

What D.C. is talking about.

The border. On Tuesday, the Supreme Court ruled that the Biden administration had to reinstate a Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while awaiting a court hearing in the U.S. The policy is formally known as Migrant Protection Protocols (MPP). It sparked controversy not just because it left some asylum seekers waiting in dangerous border cities or unsanitary conditions, but because critics said it violated international law and migrants’ right to seek asylum protection in the U.S.

When the Trump administration announced the policy in 2018, it was immediately challenged and blocked by a judge in California — and wasn’t being regularly enforced until 2020. Then, shortly after the pandemic began, the Trump administration stopped relying on the remain in Mexico policy and began turning away nearly all migrants and asylum seekers under a public health order that is still in effect. President Biden suspended the remain in Mexico policy on his first day in office and Homeland Security ended it officially in June.

Then, Texas and Missouri took the Biden administration to federal court to challenge the termination of the policy, arguing that eliminating it violated federal law and that without the policy, the states incur the costs of a large number of migrants entering the U.S. (supplying health care, issuing driver’s licenses, etc). Earlier this year, a district-court order required the Biden administration to reinstate the policy; the Biden administration took it to the Supreme Court, which ruled 6-3 that the administration needed to reinstate the order. All three liberal justices — Stephen Breyer, Elena Kagan and Sonia Sotomayor — were in the minority.

The court’s decision means that the Biden administration needs to resume the policy with a “good faith effort” while litigation continues in lower courts. It did not offer a lengthy explanation for its decision, though the court did cite the Trump administration’s effort to end the Deferred Action for Childhood Arrivals, using nearly identical language, saying that the decision was “arbitrary and capricious” and violated federal law. On Tuesday, the justices said the Biden administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.”

Below, we’ll take a look at some reactions from the right and left, then my take.


What the right is saying.

The right supports the ruling, arguing that it’s similar to rulings against Trump on DACA and that the remain in Mexico plan was good policy.

Miranda Devine celebrated the ruling as “good news.”

“If enforced, the policy would require aspiring migrants to stay in Mexico pending a court hearing of their asylum case,” she wrote. “Homeland Security says it will comply with the order but it has vowed to keep fighting it. Why? How does it serve American citizens to keep the surge over the southern border going? It is not even compassionate since it lures vulnerable people — and children — into the arms of criminal people smugglers.

“The border has become a magnet for opportunists all over the world, and the flow will never end without tough resolve and competence we don’t see in the Oval Office,” Devine added. “Why wouldn’t you try your luck if you come from one of the broken-down countries whose nationals are swelling the ranks of South Americans at the border? Remain in Mexico was effective, but only as one element of a suite of border-protection measures put in place by the Trump administration that had slowed border crossings to a trickle.”

In The Washington Post, Henry Olsensaid “reasonable people can differ” on whether the ‘Remain in Mexico’ policy is a good immigration policy, but the Supreme Court’s ruling is in line with the law and was the right call.

“The Constitution clearly states that only Congress shall make laws,” Olsen wrote. “Since the Remain in Mexico policy determines the legal rights of people attempting to enter the United States, it has the effect of a law. That creates a constitutional conundrum: How can the executive branch enact such a law when the Constitution clearly grants that power to Congress? The answer to that is the result of more than a century of constitutional jurisprudence and statute. The jurisprudential answer is that the Supreme Court has allowed Congress to delegate its lawmaking powers to the executive branch or to independent agencies so long as Congress provides an intelligible principle that guides and governs those entities. No one is contesting that the power of either the Trump or the Biden administration runs afoul of that principle.

“That delegated power, however, must be exercised according to the Administrative Procedure Act (APA) of 1946,” Olsen said. “The APA also requires that any resulting decision not be ‘arbitrary and capricious.’ Under this standard of review, a court can require an entity exercising delegated powers to show that its rule bears some reasonable relationship to the facts it has unearthed during its hearings and decision-making process. The point is that if an entity is going to pass a rule, it cannot be done in a manner more fitting for an absolute monarch than for a democratic republic. This, not the Remain in Mexico policy’s desirability, is what the court ruled on. Its order clearly stated this, noting that the administration had not shown a ‘likelihood of success’ on its claim that rescinding the protocols was ‘not arbitrary and capricious.’”

The Wall Street Journal editorial board said the “practical impact” won’t be large in the near term, but it was notable for the “legal irony of the Court’s explanation.”

“This is the same legal rationale the Court used in that Regents case to overturn the Trump Administration’s decision to rescind Barack Obama’s DACA program for young adult immigrants brought to the U.S. as children,” the board wrote. “Liberals cheered that ruling, which held that the rescission was arbitrary and capricious under the Administrative Procedure Act (APA) because Trump officials had not sufficiently considered the effects or alternatives. Now the APA review has tripped up the immigration left.

“Remain in Mexico worked as a deterrent,” the board added. “A Homeland Security review in 2019 found that enforcement against Central American migrants declined 80% as the policy took effect from May through September. More than 70,000 asylum seekers were returned to Mexico. Remain in Mexico is also more humane than the lawless chaos that now prevails… The larger story is that U.S. immigration policy continues to be a dysfunctional mess. One solution is to reduce the incentive for illegal immigration by tightening U.S. asylum law and allowing more legal migration to meet the needs of the U.S. economy. But that would require White House leadership and a Congress willing to compromise, and we have neither. So the legal battles will continue without end.”


What the left is saying.

The left says the court is acting hypocritically, and the policy will create a humanitarian crisis.

Ruth Marcus asked if the Supreme Court is now okay with judges setting immigration policy.

“It’s easy to miss amid the flood of other news, but thanks to the Supreme Court, a big chunk of our national immigration policy is now being run by a federal trial court judge in Texas,” Marcus wrote. “Oh, yes, also our foreign relations. Not just any judge, by the way, but a Trump nominee named Matthew Kacsmaryk, who, before being named to the bench, described homosexuality as ‘disordered,’ characterized being transgender as a ‘delusion’ and ‘mental disorder,’ and, of course, criticized Roe v. Wade.

“My beef, though, isn’t with Kacsmaryk as much as with his superiors at the Supreme Court,” Marcus added. “Maybe, as the court’s order suggested, it will turn out that the Biden administration acted as sloppily in ditching Remain in Mexico as its predecessor did in dumping DACA. But the issue here was what should happen while the courts sort that out. Ordering the Biden administration to move to immediately reinstate a program that hasn’t been in operation since March 2020 (the previous administration suspended it because of the pandemic), that it doesn’t believe is good policy, that requires coordination with the Mexican government — none of this needs to be done while the litigation is proceeding and the outcome uncertain.”

In MSNBC, Hayes Brown said the order was a sign of how “Trump’s racism could linger” for a long time.

“‘Remain in Mexico’ was one of the most successful anti-immigration ploys from professional brown-person hater and all-around white supremacist ghoul Stephen Miller, who was Trump’s senior domestic policy adviser,” Brown said. “When it was implemented in 2019, the policy flouted international law, requiring tens of thousands of people seeking asylum in the U.S. to wait for their eventual immigration hearings on the southern side of the border. Given the intense backlog in the immigration court system and the growing violence at these border town chokepoints, it’s easy to see why Democrats denounced the policy as cruel.

“The return of the Remain in Mexico policy shows the lasting impact of Trump’s reshaping of the federal bench. [U.S. District Judge Matthew] Kacsmaryk was one of 170 district judges Trump appointed,” Brown wrote. “According to a tally in January from the Pew Research Center, that cohort made up 27 percent of active district judges… Biden’s immigration efforts have been far from perfect. His administration bears sole responsibility for the abominable decision to uphold a public health rule that Trump activated to turn away hundreds of thousands of migrants during the pandemic. But ending the Remain in Mexico program was the easy and right call. The rejection by the courts should cause us to question whether a major chunk of the judicial branch is truly neutral in immigration cases.”

In Slate, Dahlia Lithwick and Mark Joseph Stern said the Supreme Court “blessed this unprecedented hostile takeover” of the executive branch’s immigration policies without explaining how or why.

“The implications of Tuesday’s decision are profoundly disturbing,” they wrote. “The conservative justices spent the bulk of the Trump years insisting that courts must defer to the president’s constitutional authority over foreign affairs. Now they have allowed a lone Trump-appointed judge, Matthew J. Kacsmaryk, to force the government into sensitive diplomatic negotiations over border policy. Their decision even grants Kacsmaryk sweeping authority to oversee these negotiations so he can ensure that the Biden administration is pushing Mexican officials hard enough to revive Trump’s program, something the administration does not want to do. And they have seemingly abandoned their skepticism toward nationwide injunctions like this one—a position some held when it allowed them to undermine the federal judiciary’s check on Trump.

“In the process, the six Republican-appointed justices have injected chaos, confusion, and cruelty into the United States’ border policy, thrusting thousands of asylum-seekers into legal limbo,” they wrote. “The Supreme Court gave special immigration policy deference to Donald Trump, turning a deliberate blind eye to racist motives for the Muslim ban, under the theory that the executive branch has unique constitutional authority over immigration policy. But now, this same court, aided by a raft of conservative jurists, will refuse such deference to Biden.”


My take.

Frankly, I’m pretty stunned.

There’s no doubt that liberals used the courts to slow-roll much of Trump’s immigration policy, and it’s true that they found some success here and there. But on the whole, Trump was very, very good at instituting his immigration policies, and the Supreme Court played a major role in that success. Over and over during Trump’s presidency, district court rulings issued nationwide injunctions against Trump policies just like the one Kacsmaryk made, temporarily blocking or complicating Trump’s immigration agenda. But over and over, those injunctions were brought to the Supreme Court, the court repeatedly ruled in his favor.

When I heard this case was going before the court again, I expected a similar outcome. After all, the conservative justices made it clear that a president’s foreign policy decisions should be given wide latitude. Go read their response to similar nationwide injunctions in 2018 — it’s easy to spot how harshly they judged them: “As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.”

But now that chaos is precisely what they’ve invited. Resurrecting this policy in a week, especially when it’s going to have a huge impact not just on our border but on Mexico as well — and forcing the federal government to enter negotiations with a foreign government to sort it out — is not something a single judge in Texas should be able to do.

It’s also true that this case bears similarities to the court’s ruling when Trump tried to end DACA, and it essentially gave the same explanation: the Biden administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” But the cases and ruling actually differ: First, the Biden administration did explain its argument pretty thoroughly, in a seven-page memo that you can go read. Secondly, unlike DACA, this policy was not being enforced and was essentially dormant, so leaving it that way would not have been disruptive. Finally, when Justice Roberts prevented Trump from ending DACA, he gave a lengthy explanation of why, asked for a better justification, and basically drew a map for the Trump administration to come back to the court with proper legal standing. No such explanation or request existed in this order, though.

None of this, mind you, should be viewed as an endorsement of President Biden’s border policies. It is chaotic there. I’ve written supportively about the remain in Mexico policy, insomuch as I think having a coordinated effort with Mexico and Central American nations to handle a huge influx of asylum seekers and migrants is smart — and anything that might slow down the surge we’re experiencing now is worth considering. It had enough positive elements that the Biden administration even considered reinstating it on its own. But it’s also true that the remain in Mexico policy, as it was incorporated under Trump, had horrific humanitarian costs — some 800 violent attacks were documented at the squalid pop-up camps on the Mexican side of the border, including rapes and torture. And those were just the documented incidents.

Now, though, we’re getting the worst of everything. More than 210,000 migrants were apprehended at the border last month — two hundred and ten thousand! — the most in two decades. And the conditions those migrants are now stuck in inside U.S. detention centers don’t look particularly humane either. So we’ve got a surge of immigrants and asylum seekers we can’t handle, in squalid conditions on our border, and now we have a court order demanding the administration begin sending people back to the same camps on the Mexico side that resulted in horrifying conditions, too.

It’s a mess. And, unlike in years past, tens of thousands of migrants being released into the U.S. aren’t getting a court date or aren’t showing up for the ones they have. With Afghanistan and infrastructure getting so much attention, the days of front-page stories on Biden’s “border crisis” in March have disappeared. But they’ll be back soon if the administration doesn’t get a handle on policy — especially if the Supreme Court doesn’t allow them to. All of this, naturally, is a reminder that the president and the courts shouldn’t be fighting over immigration policy in the first place. It should be Congress passing better immigration laws. But that branch of our government appears to be tripping over its own feet as well.


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A story that matters.

The $46.5 billion rental aid program designed to help tenants, renters and landlords survive the pandemic continues to disburse money at a glacial pace. Just $1.7 billion of the funds were distributed by state and local governments in July, according to the Treasury Department, leaving 89 percent of the $46.5 billion yet to be distributed and increasing the likelihood of an eviction crisis housing experts say is right around the corner. The cash was designed to be spent over three years, but White House officials have been pressuring states to disburse the money more quickly, with little success. An estimated 1.2 million households are very likely to face eviction for nonpayment of rent over the next two months. (The New York Times, subscription)


Numbers.

  • 132,865. The number of migrants encountered crossing the border in May of 2019.
  • 16,182. The number of migrants encountered crossing the border in April of 2020.
  • 212,000. The number of migrants encountered crossing the border in July of 2021.
  • 95,000. The number of those migrants who were immediately expelled under Title 42, the Trump-era public health policy that allows expulsion before claims of asylum.
  • 12%. The percentage of those expelled who were families.
  • 47%. The percentage of those migrants encountered who were expelled in July.
  • 58%. The percentage of migrants enountered who were expelled in June.

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Have a nice day.

Is this a political story we can all get behind? Yesterday, President Biden signed the PAWS Act, which allows the VA to fund the training of service dogs for veterans. The Puppies Assisting Wounded Servicemembers for Veterans Therapy Act authorizes the Secretary of Veterans Affairs to create a pilot program on dog training therapy to support veterans. The $10 million, five-year pilot program will take effect on Jan. 1, 2022, and means for the first time in American history, the VA will pay to acquire and train service dogs for veterans with PTSD. (The story)

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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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