The Supreme Court’s ruling this week reviving a Trump-era border policy sent shock waves through the immigration debate, signaling that the justices will present major hurdles 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 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. Remain in Mexico — the policy’s official name is the Migrant Protection Protocols — was used to solve the 2019 border surge, but the Biden team argued that it was too cruel to migrants and had to go.
The court’s ruling was narrow, but the implications were huge.
By refusing to overrule the lower court, the justices signaled that they would give judges significant leeway to settle disputes over the expanding use of executive power in the Biden era, just as they did for Mr. Trump.
Chief Justice John G. Roberts Jr.’s agreement with the ruling was critical.
He was part of several rulings against Mr. Trump, including phasing out DACA and adding a citizenship question to the 2020 census. Some analysts wondered whether he was evincing anti-Trump sentiment. Analysts said the decision Tuesday signals that the chief justice will apply the same scrutiny to Mr. Biden’s moves.
“Chief Justice Roberts has placed President Biden in a pair of cement-filled shoes. He can go nowhere but down,” Josh Blackman, a professor at South Texas College of Law, wrote in a piece Wednesday at Reason.com.
He said Mr. Biden’s pandemic eviction moratorium is now “on very shaky ground.”
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 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 start again with revoking Remain in Mexico and this time to check all the procedural boxes to avoid another violation of the Administrative Procedure Act.
“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 in which courts have blocked a president’s immigration moves under the Administrative Procedure Act.
President Obama’s 2014 attempt to grant a deportation amnesty to illegal immigrant parents of U.S. citizen children, a program known as DAPA, was halted on those grounds.
Judges likewise used the act 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 and to end temporary protected status for hundreds of thousands of immigrants.
Mr. Biden’s Inauguration Day deportation pause, a subsequent policy limiting deportations, and the revoking of the Migrant Protection Protocols all were deemed violations. The same judge in Texas who shot down the DAPA policy in the Obama era issued a ruling this year finding that the DACA program, a deportation amnesty for “Dreamers,” was instituted in violation of the Administrative Procedure Act.
Mr. Miller, now president of America First Legal, which has been involved in several key challenges to the Biden administration, said the president should be worried about the rest of his agenda, particularly in areas where the motivation seems to be about erasing Mr. Trump’s legacy and 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. He predicted that judges “are going to be aghast” at what is 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.
Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt brought the case decided this week. Mr. Paxton and Louisiana Attorney General Jeff Landry challenged the Biden deportation rules.
Mr. Miller said he hopes 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. The district court judges in the Migrant Protection Protocols and deportation rules cases were appointed by the last administration.
The 5th U.S. Circuit Court of Appeals, which sided with the judge in the Migrant Protection Protocols ruling, had two Trump appointees on the three-judge panel. 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’ attempt to explain why catching and releasing illegal immigrants in the U.S. was a better idea than pushing them back across the border into Mexico.
Another said the Biden team was defying the spirit of federal immigration law, which generally pushes for strict enforcement.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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