President Biden just got reversed by the Supreme Court, which upheld President Trump’s agreement with Mexico forcing those seeking asylum to stay in Mexico – not be released into the United States. This ruling matters. Here is why.
On the law, Biden halted Trump’s “Migrant Protection Protocols,” negotiated with Mexico. The US Court of Appeals, 5th Circuit, then ruled Biden could not do that.
They stayed his decision. Biden then appealed. The US Supreme Court sided with the lower court and against Biden.
One should note that – historically – Trump’s “Migrant Protection Protocols” were hardly novel. What made them novel was what came before – they reversed Obama’s decision to import asylum seekers – that is, permit unadjudicated asylum seekers’ residence in the United States.
Last legal note. You can probably see why Obama’s decision was troubling.
Traditionally, an asylum seeker must prove a “well-founded fear of persecution,” individuated risk presented by country of origin. To be at risk, they must apply from that country, not a third country – which would obviate their risk. Technically, Mexico should be granting asylum – except illegals want a free pass into America.
So, Trump worked a compromise – which was really a return to regular order, with the twist that America would consider these applicants from Mexico if they remained there during review.
On the facts, Trump’s reason for seeking this compromise was clear. More than 70 percent of those seeking asylum do not – after fair review – warrant asylum, no right to remain here. Finding them, however, is hard. Many never appear for their court date, vanishing into America. See, e.g., Asylum Denial Rates Continue to Climb.
So, Trump reversed that, then Biden reversed Trump – going back to Obama’s “open door” policies, ending “remain in Mexico.” The US Court of Appeals said – “whoa,” and prevented the reversal, and US Supreme Court just said, “yep that’s right.”
The immediate impact is asylum seekers will have to stay outside the US when applying, long the norm before Obama. They will have to prove a “well-founded fear of persecution” in their country of origin. If they cannot, no asylum.
Biden’s team says they will challenge the ruling on the merits but “agree” to comply “in good faith.” What the Supreme Court did is confirm Biden’s act was “arbitrary and capricious.”
Less obvious elements of this decision are the most interesting.
First, this case came through a federal district court in Texas, a state disproportionately affected by illegal immigration. Other 5th Circuit states are also adversely affected by illegals, plus states in the 10th (New Mexico), 11th (Florida), and unwieldy 9th (with Arizona, California, and Nevada). A decision on the merits may not go for Biden.
Second, the current ruling found Biden had “failed to show likelihood of success on the claim …” In other words, the underlying cause is weak. While three justices gave Biden a pass, the other six were clear – suggesting where a future ruling may go, against Biden. While Mexico saw advantages in the Trump protocols, groups favoring illegal immigration continue pushing.
Unfortunately, this ruling does not reverse Biden’s admission of 13,000 asylum seekers to date. Oversight of the “good faith” pledge will be important, to assure promises made are kept. Even that pledge is a bit odd. You see, Biden just ignored another Supreme Court ruling.
In June, the High Court said an extension of the COVID-related “eviction moratorium” must be legislative (passed by Congress) or was unconstitutional. Biden ignored the ruling, issuing an executive order extending the “eviction moratorium.”
Court watchers were aghast – a president openly disrespecting, disavowing the Supreme Court. That is why Biden’s pledge now – to act “in good faith” on immigration – is important. It seems to signal awareness that many question Biden’s respect for the Supreme Court, rebutting critics.
Of course, the fact that we are even talking about this – the idea that a White House would reverse a past White House on “arbitrary and capricious” grounds, and in another case ignore the Supreme Court, forcing a “good faith” pledge in this case, is rather remarkable.
But this is where we are – with an ideologically-preoccupied White House straining to “capriciously” change US immigration policies, while openly disrespecting the High Court.
None of this addresses the legality of those already here, or admission of COVID-infected illegal aliens – a word no longer officially allowed. None of this addresses Biden’s waivers to Title 42, effectively permitting unaccompanied children, pregnant women, and illegals with “underlying conditions” (whatever those are) into the country, even as capacity overflows. Major challenges.
Net-net, we live in challenging times – but for now, the US Court system is maintaining integrity. Courts have begun setting right policies Biden “capriciously” reversed.
If the Biden White House respects these Supreme Court rulings, hope survives.