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Trump’s “Remain In Mexico” Policy To Be Reinstated After Supreme Court Ruling

Trump’s “Remain In Mexico” Policy To Be Reinstated After Supreme Court Ruling

In 6-3 ruling, SCOTUS refuses to stay lower court injunction reinstating the Trump policy, Breyer, Sotomayor, and Kagan would have granted a stay.

When the Supreme Court ruled Tuesday night on the “Remain in Mexico” policy, I was in transit. But it’s an important ruling and throws back in Democrats’ face their successful litigation to keep DACA in place despite Republican attempts to end that illegal Obama policy.

A group opposed to the policy provides this explanation of the policy:

(1) What is the “Remain in Mexico” policy?

After publicly announcing on December 20th [2018] that it was working on such a policy, the U.S. government, through the Department of Homeland Security (DHS), issued its new Migrant Protection Protocols, or the “Remain in Mexico” policy via memorandum on January 25th. The new policy and its guidance outline procedures under which the U.S. government will return certain asylum-seekers to Mexico to wait through the duration of their cases pending in the U.S. immigration court system.

(2) What happens to people under this policy?

The Remain in Mexico policy requires certain asylum seekers arriving by land at the U.S./Mexico border (both at and between official ports of entry (POEs)) who pass a credible fear screening with a U.S. asylum officer (a first step in the process for requesting asylum) to return to Mexico to await their asylum hearing in U.S. immigration court.


(5) Who is not subject to the Remain in Mexico policy?

• Those who arrived at the U.S./Mexico border and were placed into removal proceedings prior to the policy’s implementation (i.e., it is not retroactive);
• Unaccompanied children;
• Mexican citizens or nationals;
• Individuals who are processed for expedited removal;
• Any person who is determined by DHS to be more likely than not to face persecution or torture if returned to Mexico;
• Individuals with known mental or medical health issues;
• Individuals of interest to the U.S. or Mexican government or those with a criminal history or history of violence; and
• Lawful permanent residents returning to the U.S. or individuals with advanced parole.

You can read the lower court Orders here. The 5th Circuit ruled:

This case concerns the Migrant Protection Protocols (“MPP”) created by the Secretary of the Department of Homeland Security on December 20, 2018, and purportedly rescinded by DHS in a memorandum on June 1, 2021 (“June 1 Memorandum”).1 After a full bench trial and 53 pages of findings of fact and conclusions of law, the district court concluded that DHS’s purported rescission of MPP violated, inter alia, the Administrative Procedure Act (“APA”). DHS seeks a stay pending appeal. After carefully considering full briefing from the parties, we hold DHS failed to satisfy the four stay factors. See Nken v. Holder, 556 U.S. 418 (2009). The motion is denied.

The Supreme Court Order refused to stay the lower court orders, so the original district court ruling was to be enforced:



The application for a stay presented to Justice Alito and by him referred to the Court is denied. The 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). Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.

Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application.

The DHS case cited was the DACA case, where SCOTUS ruled:

In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.

Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated.

DACA us still here. Remain In Mexico will be back. Executive actions and policies of a prior administration are hard to rescind, and removing policies a new administration believes are unlawful, needs to be done carefully. That’s the principle being pursued by SCOTUS.


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Damage already done and this also assumes that those in charge of this dumpster fire will listen to any ruling. What enforcement power does the SCOTUS have? This left wing cabal controls all executive branch offices and have heavily soiled the unelected contingent with their kind, including the law enforcement arms and even a large swath of the military. They control both houses of the legislature. SCOTUS is on an island and has no teeth to stop the other branches from doing whatever they want to do.

And if the Biden admin ignores the ruling?

We are already living in a semi-lawless nation.

The Biden admin is already ignoring many other immigration laws.

The Biden admin is already ignoring SCOTUS on suspension of evictions.

Dem governors, AGs, and Secretaries of State around the country ignored the requirement that election law changes be approved by state legislatures.

Many Covid rules and regs are unconstitutional. And ignored by the elites.

The FBI spied on a candidate for POTUS and a president. Nothing really serious happened to anyone.

An FBI lawyer falsified evidence to obtain a FISA warrant to spy on a presidential campaign and got a slap on the wrist.

Hillary suffered no consequences for treating classified emails like junk email.

BTW, where’s Durham?

Why wouldn’t Comrade Biden and his admin just ignore another one they don’t like? What’s the remedy if they do?

    Of course they will ignore it. And there is no remedy, particularly if the GOP doesn’t retake both the House and Senate next year.

      Oh? Kindly point me in the direction of what exactly Bitch McConnell or McCarthy plan to do about the border next year if we make him Senate ‘leader’ again.

      Because as far as I can see literally nothing about the border would be different if the RINOs had both Senate and House right now. Everything that is happening is because of Biden officials that were confirmed by large numbers of RINOs.

      The idea that anything on the border would be different if we just put the RINOs back in charge is just wishcasting. The same officials with the exact same policies would be in place, and the exact same laws would be blatantly ignored by the current administration.

      The RINOS are too busy ‘reaching across the aisle’ and spending a trillion dollars on ‘infrastructure’ to care about the border.

        Yeah, I see your point. How about we just vote for the most anti-American socialist socialist of them all?! Better yet, just stay home and don’t vote at all! That’ll show ’em who the true American patriots are! Yessireebob.

          We either vote in people that are going to FIX the problem, or we continue to lose. And putting in the same crop of fools IS LOSING.

          Your way is not ‘winning’, and at this point it isn’t even postponing losing anymore.

          Putting the current crop of fools back in charge means the Democrats simply win slower.

          As I said. What, exactly, do think would be different about the border right now with the RINO crew in charge of the Senate? Not a goddamn thing. Because they aren’t passing any of this crap through Congress. They’re simply issuing directives and blatantly ignoring laws, and the RINO crew have done ABSOLUTELY NOTHING to stop them.

          The current crop of jackasses in Congress haven’t even PRETENDED that they’re going to do anything about the border if we put them back in power. So what, exactly, makes you believe that this will change if we vote in a couple more jackasses and put Bitch McConnell back ‘in charge’?

          We’re through being jerked around by the RINO failure theatre crew that get voted in by just barely being ‘not Democrat’, where they spin their wheels and ‘reach across the aisle’ to give them most of what they want anyway.

          I will not vote for a single jackass that intends to put Bitch McConnell and McCarthy back in power. Period. They have proven they have NO INTEREST in advancing actual conservative priorities. And the more people condescend and whine about ‘but then Democrats win’. Yes. They’re ALREADY WINNING. Give me somebody that actually plans to reverse Democrat policies and enact real change, and I’ll crawl over broken glass to vote for them. Until then, all the RINOs and RINO apologists can go to hell.

          I completely get your fury, Olinser, but I don’t live in Kentucky and didn’t vote for McConnell. I live in Florida and voted for Trump, DeSantis, Scott, Rubio, and Gaetz. I wasn’t thrilled to vote for either Scott or Rubio, but they were better than the commie alternatives, and that was my choice to make.

          I don’t know where you live or who’s on your ballot, but I think you might do well to channel you anger into doing something positive where you are. Are you in Kentucky, for example? Can you organize a campaign against McConnell? If not, stop fruitlessly tilting at windmills in some other state and figure out what you can do where you are. Griping on blogs isn’t going to solve anything, local action will. Get to work.

          Only real solution is to primary the Rhinos and keep primarying Rhinos until we get some one who will actually represent our interests with vigor.

          And in some cases (hello Cornyn) we need to pass some recall laws to remind them they do answer to us.

          I apply term limits. It’s my vote and my choice. I don’t lose sleep over the Uniparty.

        Danny in reply to Olinser. | August 26, 2021 at 6:31 am

        Before starting I genuinely think you need special help if you can’t tell the difference between 2009s congress and that of 2010 or can’t tell the difference between the senate in 2013 vs 2014.

        If you care at all (as in even slightly) about reality

        1. Prevent any further Biden judge being appointed

        2. Prevent any further legislation from Biden

        3. Dramatically reduce amount of spending from congress

        4. They can’t just get everything they want because government shut downs tend to come with a backlash but they could get a lot of concessions (remember something called the Sequester?).

        5. Dramatically strengthen the resolve of the supreme court which right now is scarred to death of court packing.

        Sorry that Mitch McConnell had no time machine or armies ready to launch a coup so couldn’t change the way MI, WI, and PA voted but making him senate majority leader is the best and only way to obstruct parts of the Biden agenda, and defeating Biden 2024 is the only way to completely stop it.

        Let everyone know if you are in for a fight or not, wanting to surrender and not fight for 2022 because you want to pretend to yourself it makes no difference shouts “I surrender”.

      Dathurtz in reply to Fuzzy Slippers. | August 26, 2021 at 7:09 am

      Well, there is a remedy. It just really sucks and too many people are in denial that it is needed.

In essence, these are simple cases – both the DACA and the MPP case. There is a statute, called the Administrative Procedure Act, that requires certain things before a bureaucracy can change a widely applied rule. The government must comply with the statute, and generally the statute requires that the agency must hold public hearings, take public testimony and give reasons for its actions.
Only after that is done can the agency put a new rule into effect. Both the Trump administration and the Biden administration tried to ignore this law. Both were slapped down by the courts, quite rightly. It seems both parties are tending to believe they are free from the constraints of law, and the Court is reminding them that in our system of government, the President is not a King. He is there to “FAITHFULLY execute the laws of the United States, and the Congress decides what those laws are.

    Ken in Camarillo in reply to fredx3. | August 27, 2021 at 1:39 pm

    The APA process is reasonable to avoid a whiplash effect as successive administrations could continuously make sweeping changes to procedures. However, when a process is obviously unlawful (existing law prohibits the process, but the bureaucracy implemented it anyway), then the APA should not apply, and the bureaucracy should immediately stop violating the law. It is best in such a case for the administration to allow a notification period so people who were relying on the unlawful process have some time to rearrange their plans before the process ends. In fact, this is what the Trump administration did with DACA, giving 6 months notice of its termination; thus application of APA in that case was legally invalid. In other words, APA should never be used to prolong an obviously unlawful process.

Too little too late

    Danny in reply to gonzotx. | August 26, 2021 at 6:35 am

    They are judges not oligarchs they can’t rule on a case not in front of them, and it won’t undo damage but it will prevent further damage so no it is not too late and we should be glad we have this ruling.

That a program is illegal would seem to avoid arbitrary and capricious in ending it. Perhaps they mean that the meaning of law if arbitrary and capricious and so illegality is not an argument.

Anyway the mistake is years ago and the courts simply incorporate mistakes into current decisions.

Mathematically, if you have a contradiction, you can prove anything is true.

So the law can find anything at all follows from contradictory precedent, and so anything at all is the law. It’s just a matter of writing the opinion.

This crowd brushes off any court decision, law, or Constitution it doesn’t like, and we all know it. In a pinch, they’d leverage their control of Congress to add more leftist automatons to the Supreme Court. Every branch of government and voting process has been perverted to work for them and against us, the people.

JusticeDelivered | August 26, 2021 at 11:57 am

I think that all of use greatly underestimated how bad the swamp is. One good thing that has come from this is exposure of these people.

Professor, it only makes sense that rules created by an Executive Order can be deleted by an Executive Order. I said the same thing regarding DACA.

If they ignore the ruling then that is a reason to ignore other rulings. Same way sanctuary cities gave way to 2A sanctuary cities. Do it and get more of the same.

Nice, but Biden and ilk simply ignore the ruling. Nothing changed.