Kavanaugh: “The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings.”
SCOTUS ruled 5-4 that the Biden administration can end the Migrant Protection Protocols (MPP), otherwise known as the Remain in Mexico policy.
Brett Kavanaugh joined the majority.
This is NOT Title 42, which is all about COVID-19.
MPP said that “certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA).”
Texas and Missouri sued the Biden administration when it announced MPP would end on June 1, 2021. The states claimed the order “violated the INA and the Administrative Procedure Act (APA).
The Northern District of Texas pointed to Section 1225 of the INA:
The court first concluded that terminating MPP would violate the INA, reasoning that section 1225 of the INA “provides the government two options” with respect to illegal entrants: mandatory detention pursuant to section 1225(b)(2)(A) or contiguous-territory return pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Because the Government was unable to meet its mandatory detention obligations under section 1225(b)(2)(A) due to resource constraints, the court reasoned, terminating MPP would necessarily lead to the systemic violation of section 1225 as illegal entrants were released into the United States. Second, the District Court concluded that the June 1 Memorandum was arbitrary and capricious in violation of the APA. The District Court vacated the June 1 Memorandum and remanded to DHS. It also imposed a nationwide injunction ordering the Government to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under [section 1225] without releasing any aliens because of a lack of detention resources.” Id., at 857 (emphasis in original).
DHS tried to explain its reasoning to terminate MPP in an October 29 memorandum.
The five justices determined MPP does not violate section 1225 of the INA or the APA.
Roberts wrote a long-winded opinion, but Kavanaugh’s stuck out to me.
The laws we have only give DHS two options, Kavaugh pointed out. DHS can “grant noncitizens parole into the United States if parole provides a ‘significant public benefit.'” DHS can also “choose to return noncitizens to Mexico.”
“In general, when there is insufficient detention capacity, both the parole option and the return-to-Mexico option are legally permissible options under the immigration statutes,” wrote Kavanaugh. “As the recent history illustrates, every President since the late 1990s has employed the parole option, and President Trump also employed the return-to-Mexico option for a relatively small group of noncitizens. Because the immigration statutes afford substantial discretion to the Executive, different Presidents may exercise that discretion differently. That is Administrative Law 101. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part).”
Kavanaugh reminded everyone that SCOTUS does “not have the authority to end the legislative stalemate or to resolve the underlying policy problems.”
In other words, get your act together, Congress: “The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings.”DONATE
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