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Prof. Peter Margulies, Lawfare, July 7, 2022
"In a 5-4 decision on June 30, the Supreme Court cleared away a major obstacle to the Biden administration ending the Trump administration’s “Remain in Mexico” program (officially called Migrant Protection Protocols or MPP). Chief Justice John Roberts wrote for the court, in an opinion that Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor joined. Justice Brett Kavanaugh added a concurrence, and Justice Amy Coney Barrett, while she dissented on a threshold procedural point, stated that she agreed on the merits. Justice Samuel Alito filed a dissent on procedure and the merits, joined by Justices Neil Gorsuch and Clarence Thomas. On the merits, the majority held that 8 U.S.C. § 1225—part of the Immigration and Nationality Act (INA)—did not bar an end to MPP. However, before the Biden administration’s secretary of homeland security, Alejandro Mayorkas, can definitively end MPP, the district court must determine that Mayorkas’s reasons for ending the program in his October 2021 memorandum provide an adequate explanation under the Administrative Procedure Act (APA) and the court’s decision in Motor Vehicle Manufacturers Ass’n v. State Farm Automobile Insurance Co. ... As a technical matter the Supreme Court’s formal issuance of its decision within the next 4-6 weeks will vacate the district court’s injunction against ending MPP. However, the Biden administration faces one remaining hurdle to a definitive end to the program: demonstrating on remand to the district court that the administration’s reasons for terminating the program, as stated in the October 2021 Mayorkas memorandum, were not “arbitrary and capricious” under the APA. Citing the landmark decision in Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Automobile Insurance Co., the court in the DACA case had found that the initial memorandum by Duke failed to consider the impacts of terminating DACA or the merits of less drastic alternatives. On remand to the district court in the MPP case, the government will have to show that the October 2021 memorandum passed this test. To clear this hurdle, the government will have to submit clear and compelling evidence on the points raised in the October 2021 memorandum. Evidence placed on the record should include information on the foreign affairs effects of continuing MPP; the Department of Homeland Security’s efforts to work with state and local governments to mitigate any adverse impact of ending the program; and the disruptive effect of MPP on orderly presentation of sound asylum claims. The Supreme Court’s five-justice majority, joined on the merits by Barrett, appears to have an open mind on these issues. The government should avoid broad legal arguments and focus instead on methodically making a favorable record. That will be the most effective way to hurdle this last obstacle to ending MPP. Given the path of the case thus far, the Supreme Court will likely have another opportunity to rule in the case, possibly as early as next term."