The Supreme Court’s ruling this week reviving a Trump-era border policy sent shockwaves through the immigration debate, signaling that the justices will be a major hurdle for President Biden as he tries to impose his more relaxed approach to immigration enforcement.
Stephen Miller, an architect of President Trump’s immigration agenda, had been anxiously awaiting the court’s first encounter with a Biden policy.
“My greatest fear was that we would wake up in a world in which all of the precedents that were built up over the last four years to enjoin President Trump’s lawful actions would be suddenly forgotten when it came to President Biden’s illegal actions,” Mr. Miller told The Washington Times. “What the Supreme Court said with its 6-3 ruling is that every single one of Joe Biden’s actions, particularly in the immigration context, are extremely vulnerable.”
The ruling itself was very limited.
The justices declined to issue a stay of a lower court injunction that found the Biden team acted too rashly in erasing the Trump-era “Remain in Mexico” policy, violating the Administrative Procedure Act (APA). Remain in Mexico (the policy’s official name is the Migrant Protection Protocols) had been used to solve the 2019 border surge, but the Biden team argued it was too cruel to the illegal immigrants and had to go.
The court’s ruling was narrow, but the implications are huge.
In refusing to overrule the lower court, the early analysis from experts was that the justices signaled they are going to give judges significant leeway as they settle disputes over the expanding use of executive power in the Biden era, just as they did for Mr. Trump.
The fact that Chief Justice John G. Roberts Jr. was part of the ruling was critical.
He had been part of several rulings against Mr. Trump, on everything from phasing out DACA to adding a citizenship question to the 2020 census, leaving some analysts to wonder whether he was evincing an anti-Trump sentiment. Analysts said Tuesday’s decision signals he’s going to apply the same scrutiny to Mr. Biden’s moves, too.
“Chief Justice Roberts has placed President Biden in a pair of cement-filled shoes. He can go nowhere but down,” wrote Josh Blackman, a professor at South Texas College of Law, in a piece Wednesday at Reason.com.
He said Mr. Biden’s pandemic eviction moratorium is now “on very shaky ground” after the ruling.
Another policy likely to fall is the Biden team’s attempt to restrict which illegal immigrants ICE can arrest or try to deport. A lower court judge in Texas issued an injunction last week, but has stayed that ruling until Monday to give the Biden team a chance to ask appeals courts to step in.
“Every single thing Joe Biden has done is profoundly vulnerable, and the 6-3 ruling, which includes Roberts, makes that abundantly clear,” Mr. Miller said.
Immigrant-rights activists seemed resigned to the high court’s stance.
Several groups urged the Biden team to go back to the starting line and re-do the revocation of Remain in Mexico, this time checking all the procedural boxes to avoid another APA violation.
“The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation,” said Omar Jadwat, head of the immigrant rights project at the American Civil Liberties Union. “What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system.”
Remain in Mexico is the latest in a string of cases where courts have blocked a president’s immigration moves under the APA.
President Obama saw his 2014 attempt to grant a deportation amnesty to illegal immigrant parents of U.S. citizen children, a program known as DAPA, halted on APA grounds.
Judges likewise used the APA to stop Mr. Trump’s efforts to phase out DACA, to insert a citizenship question on the 2020 census, to require legal immigrants to avoid using welfare, to end Temporary Protected Status for hundreds of thousands of migrants,
Mr. Biden, meanwhile, has already seen his Inauguration Day deportation pause, a subsequent policy limiting deportations, and the MPP revocation all fall victim to APA violations. And the same judge in Texas who shot down the DAPA policy in the Obama era also issued a ruling this year finding the DACA program, a deportation amnesty for “Dreamers,” was instituted in violation of the APA.
Mr. Miller, now president of America First Legal, which has been involved in several of the key early challenges to the new administration, said Mr. Biden should be very worried about the rest of his agenda, particularly in areas where the motivation seems to be about erasing Mr. Trump’s legacy, then coming up with justifications later.
“Every single thing that Joe Biden has done on immigration is built on a foundation of pretextual lies,” he said. “They didn’t diagnose a problem honestly, propose a solution and then work in good faith to implement that solution. They had a predetermined ideological objective, created a fake reason, and then they pretended that reason was real.”
Mr. Miller said he was surprised that the Justice Department was going along with some of the arguments, predicting judges “are going to be aghast” at what’s being submitted in their courtrooms.
“If we had tried to get DOJ to make representations in court that are so contrary to human reason, they would have refused,” he said.
This week’s case was brought by Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt. The Biden deportation rules challenge was brought by Mr. Paxton and Louisiana Attorney General Jeff Landry.
Mr. Miller said he’s hoping more states get involved.
“The only limiting principle in how successful we can be in ending this truly merciless assault on our nation’s sovereignty is how many more states and how many more plaintiffs are going to step up before it is too late,” he said.
Trump-appointed judges have also been front-and-center, with both district court judges in the MPP and deportation rules cases having been appointed by the last administration.
The 5th U.S. Circuit Court of Appeals, which sided with the judge in the MPP ruling, also had two Trump appointees on the three-judge panel, and the Supreme Court has three Trump appointees, all of whom appear to have backed the states’ challenge to Mr. Biden.
The judges issued scathing evaluations of the Biden team’s decision-making. One lampooned Homeland Security Secretary Alejandro Mayorkas’s attempt to explain why catching and releasing illegal immigrants in the U.S. was a better idea for American immigration than pushing them back across the border into Mexico.
Another said what the Biden team was doing defied the spirit of federal immigration law, which generally pushes for strict enforcement.
