BIG WIN: Supreme Court Deals Biden Administration a Blow re: Remain in Mexico Policy

AP Photo/Jose Luis Magana

A week-and-a-half ago, we reported on a victory at the trial court level for the States of Missouri and Texas regarding the Biden Administration’s decision to rescind the Remain in Mexico policy.  As I explained at the time:


The Court notes that the DHS (under Trump) found MPP to be effective, though there were flaws noted in their original implementation. Consequently, DHS recommended improvements to the program. Additionally, there were legal challenges to MPP, though these were ultimately rendered moot once the Biden administration first suspended, then (in June 2021) terminated the program.

On April 13, 2021, the State of Texas and the State of Missouri filed suit against President Joe Biden, the United States, and the pertinent US agencies and officials challenging the suspension of the program.

Judge Kacsmaryk’s opinion specifically finds that:

  • The termination of MPP increases the number of aliens present in the United States
  • Texas and Missouri have suffered injuries because of the increased numbers of  aliens present in their states

Further, Judge Kacsmaryk concluded that the termination of the MPP violated the APA (Administrative Procedures Act) and forced the Defendants to violate 8 U.S.C. § 1225 (which provides the government with two options as to asylum-seeking aliens — detention or return to a contiguous territory).


Pursuant to his finding, Judge Kacsmaryk permanently enjoined and restrained the Biden Administration from enforcing their June Memorandum (thus effectively reinstating the Remain in Mexico policy).

Judge Kacsmaryk stayed the application of his Order for seven days to afford the Administration time to appeal, which it did, to the 5th Circuit Court of Appeals, seeking a stay of Judge Kacsmaryk’s Order pending appeal on the merits. The 5th Circuit denied that application and the Administration appealed to the Supreme Court. Late Friday night, Justice Alito issued a temporary stay until today to allow the full court to consider the filings in the case.

In a 6-3 decision late this afternoon, the Supreme Court issued its Order denying the Administration’s application for stay, noting that they had “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” (As one might expect, Justices Breyer, Sotomayor, and Kagen disagreed with the decision.)

Missouri Attorney General Eric Schmitt celebrated the news:


Bear in mind, this isn’t a full decision on the merits — this is merely a ruling that Judge Kacsmaryk’s Order will not be stayed pending the appeal on the merits. The net effect is that the Remain in Mexico policy is back in effect, unless and until the  Biden Administration wins an appeal on the merits. (Note, that in today’s Order, Justice Alito found that the Administration failed to demonstrate a likelihood of success on the merits, though nothing is set in stone until the appeals process is complete.) And that, indeed, is a big win.


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