A federal judge ruled earlier this month that the Biden administration must reinstate the so-called “Remain in Mexico” policy implemented by former President Donald Trump as a lawsuit opposing its cancelation works its way through the court system.
The White House responded by appealing that ruling to the U.S. Supreme Court, but the request to block reinstatement of the policy was denied on Tuesday.
“Failed to show a likelihood of success”
Under the Trump-era policy, officially called the Migrant Protection Protocols, asylum-seekers at the southern border are required to wait in Mexico while their claims are being processed.
Biden attempted to terminate the program upon coming into office, but Texas and Missouri challenged that move in court. Now, the administration will be required to reinstate the policy while those challenges are considered.
The nation’s highest court ruled 6-3 on Tuesday to deny the Biden administration’s request for a permanent stay on the lower court’s order. Days earlier, Supreme Court Justice Samuel Alito issued a temporary administrative stay on the order to allow for both sides to make arguments in the case.
As the court determined in its subsequent ruling: “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.”
The court’s three liberal justices — Stephen Breyer, Elena Kagen, and Sonia Sotomayor — would have granted the administration’s request.
“Comply with the order in good faith”
U.S. District Court Judge Matthew Kacsmaryk, a Trump appointee — ruled on Aug. 13 that the Biden administration had acted in an “arbitrary and capricious” manner in terminating the policy without going through the proper procedures.
Biden effectively suspended his predecessor’s order on his first day in office by way of an executive order and a Department of Homeland Security memo. The policy was more formally terminated in a subsequent memo issued in June.
Kacsmaryk found that the Biden administration had violated the Administrative Procedures Act, which governs executive agency actions, as well as existing immigration statutes. His ruling ordered the program to be reinstated in “good faith” while the court process continues.
In a statement on the matter, the DHS asserted that it “respectfully disagrees” with the Supreme Court’s ruling and vowed to “vigorously challenge” the lower court’s order in an appeal.
Proponents of the policy, however, can take some comfort in the fact that the agency said it would “comply with the order in good faith” and “has begun to engage with the GOvernment of Mexico in diplomatic discussions surrounding the Migrant Protection Protocols.”