Illustration Credit: Glenn McCoy
This week, in a 6-3 decision that saw Chief Justice John Roberts side with conservative Justices Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, Samuel Alito, and Neil Gorsuch, the United States Supreme Court refused to block a ruling by a federal judge in Texas that ordered the administration of U.S. President Joe Biden to reinstate the “Migrant Protection Protocols” (MPP), the controversial, Trump-era immigration policy more commonly known as “Remain in Mexico.” While Secretary of Homeland Security Alejandro Mayorkas and his Department of Homeland Security expressed disagreement with the decision, they acknowledged the court’s injunction and have agreed to comply while awaiting the appeals process.
Negotiated between the governments of Mexico and the U.S. during the respective administrations of President of Mexico Andrés Manuel López Obrador and former U.S. President Donald Trump, then-candidate Biden criticized MPP during the 2020 presidential race, subsequently terminating the policy one month after his inauguration. With arrests of migrants unlawfully entering the U.S. via its southern border with Mexico recently reaching a 20-year high, the state of Texas sued the Biden administration, claiming that the rescindment of the policy had placed an undue burden on state and local governments in dealing with the migratory influx. Upon hearing Texas’ suit, U.S. District Judge for the Northern District of Texas Matthew Kacsmaryk, a Trump appointee, overturned the cessation of MPP, offering the Biden administration two alternatives: either detaining all of those migrants seeking asylum at the U.S. border, or deporting them back to Mexico.
Since the inception of the “Remain in Mexico” policy in 2019, the program has sent more than 60,000 asylum-seekers—overwhelmingly, migrants from the “Northern Triangle” countries of Central America (Guatemala, Honduras, and El Salvador) fleeing gang violence, endemic poverty, political instability, and natural disasters—back to Mexico in order to await a legal decision on their asylum requests. Many migrants seeking asylum inhabit squalid “provisional camps” in some of Mexico’s notoriously violent border cities, where they are subject to inhumane conditions and vulnerable to criminal activity, from kidnapping to sexual abuse and exploitation.
Some observers have taken note of Chief Justice Roberts’ decision to join the conservative majority in the case of Biden v. Texas. During the Trump administration, Roberts joined the Supreme Court’s liberal leaning justices in preventing the President’s dismantling of the Deferred Action for Childhood Arrivals (DACA) program. His reasoning for the decision was the same as it is in the case of Biden v. Texas: that the Trump administration had failed to show a “a reasoned explanation for its action” in rescinding DACA. However, since the Biden administration has already phased out MPP, they will now, by law, be required to renegotiate with the Mexican government to ensure compliance with Judge Kacsmaryk’s decision. Considering the contentiousness that defined the negotiations between the Trump and López Obrador administrations, there exists no recent precedent for this diplomatic dilemma, especially considering the U.S. judiciary’s historic deference to Congress and the executive with respect to issues of foreign policy. While the government of Mexico has not yet responded to the MPP reinstatement order, resumed negotiations on the subject appear both inevitable and imminent.