SCOTUS rules Biden must revive Trump-era Remain-in-Mexico policy

The Supreme Court issued an order late Tuesday declining to stop the revival of a Trump-era border policy that requires asylum-seekers to wait in Mexico while their cases are reviewed by U.S. immigration judges.

The high court’s conservative supermajority denied the Biden administration’s emergency request to continue the suspension of a federal judge’s order that requires U.S. border officials to reinstate the so-called “Remain-in-Mexico” program.

Since the current hold on the lower court judge’s ruling expires at midnight on Tuesday, the Biden administration will be legally mandated to implement the Trump-era border rule on Wednesday.

Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer, who make up the Supreme Court’s liberal minority, indicated they would have granted the Biden administration’s request.

Tuesday’s ruling is a significant judicial setback for the Biden administration, which has maintained it can’t implement the Remain-in-Mexico policy without the Mexican government agreeing to accept migrants returned by the U.S. 

Last week, the Mexican foreign ministry called the potential revival of Remain-in-Mexico a “unilateral” U.S. action, saying it had yet to be officially notified of a policy change. 

Representatives for the Department of Homeland Security have yet to respond to questions about their operational plans to reinstate the Remain-in-Mexico rule, which the Trump administration dubbed the Migrant Protection Protocols, or MPP. 

At the center of the court case over the MPP program is a lawsuit filed by Texas and Missouri, which alleged that the Biden administration illegally terminated the program earlier this year.

Earlier this month, U.S. District Judge Matthew Kacsmaryk, who was appointed to the federal bench by former President Trump, agreed with the arguments presented by Texas and Missouri, finding that the Biden administration’s rescission of the MPP policy was unlawful.

Kacsmaryk ordered federal officials to revive the Remain in Mexico program until it is “lawfully rescinded” and the government has the detention capacity to hold all asylum-seekers and migrants subject to mandatory detention.

The Fifth Circuit Court of Appeals refused to suspend Kacsmaryk’s order last week, with a three-judge panel supporting his legal opinion.

Justice Samuel Alito subsequently granted the Biden administration a four-day “administrative stay,” which expires Tuesday at midnight.