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High Court Denies MPP Stay Request...With Important Caveat

August 25, 2021 (1 min read)

On Aug. 24, 2021 the Supreme Court, 6-3, denied the Biden administration's application for a stay of a district court order reactivating the "Remain in Mexico" (Migrant Protection Protocols or "MPP") program.  Amy L. Howe has details here.  Karen Tumlin points out an important qualification: "Pointing out that this [" Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.] is not a typical line in a stay denial with no actual reasoning. There were at least 5 votes to be sure to include language saying they were not altering the 5th circuit’s (very different) construction of the district court order.  Perhaps without that narrowing by the 5th circuit the outcome tonight would be different. But regardless, it is what the 5th circuit said about good faith efforts to implement Remain in Mexico that should ground the next steps here. And that does not require a Remain in Mexico v2. Last, I think the June 1 memo ending Remain in Mexico is entirely legally sound. And not arbitrary & capricious. But given this result a new memo taking account of Texas’ alleged harms is another tool the Biden administration has to ensure this horrible program never returns."