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Trump's 'Remain in Mexico' policy is back to make asylum harder

The post-Trump federal courts will be a hurdle blocking humane immigration policy for decades.

On his first day as president, Joe Biden issued a slate of executive orders to reverse some of his predecessor’s most damaging policies. Now Biden’s administration is being forced to restart one of the worst of them, a sign of how former President Donald Trump’s racism could linger over the U.S. for a long time.

“Remain in Mexico” was one of the most successful anti-immigration ploys from professional brown-person hater and all-around white supremacist ghoul Stephen Miller, who was Trump’s senior domestic policy adviser. When it was implemented in 2019, the policy flouted international law, requiring tens of thousands of people seeking asylum in the U.S. to wait for their eventual immigration hearings on the southern side of the border. Given the intense backlog in the immigration court system and the growing violence at these border town chokepoints, it’s easy to see why Democrats denounced the policy as cruel.

With an executive order suspending the policy while it was under review, Biden put the kibosh on Remain in Mexico on Jan. 20. The Department of Homeland Security announced in June that it was pulling the plug on the Migration Protection Protocols, or MPP, as the program is officially known, for good.

But in April, a few weeks before DHS’s announcement, Texas (and Missouri, for some reason) filed a lawsuit arguing that the White House hadn’t considered the impact on states before it 86ed the policy. The MPP program was designed to “address the migration crisis by diminishing incentives for illegal immigration, weakening cartels and human smugglers, and enabling DHS to better focus its resources on legitimate asylum claims,” the attorneys general from those states argued.

Remain in Mexico did none of those things, but U.S. District Judge Matthew J. Kacsmaryk decided that points had been made. Kacsmaryk ruled Aug. 13 that Homeland Security Secretary Alejandro Mayorkas had failed “to show a reasoned decision” for pulling the plug on the policy. Accordingly, he ordered that the program start up again.

The 5th U.S. Circuit Court of Appeals denied the Justice Department’s request to further delay Kacsmaryk’s decision during the appeal process, and the Supreme Court, denying the administration’s request for a stay, ruled Tuesday night that the lower court’s decision is in effect.

I’m sure conservative legal eagles were tickled that the order included the phrase “arbitrary and capricious.”

“The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the unsigned order read. The three liberal justices, it noted, would have granted the stay.

Two things stand out here. First, I’m sure conservative legal eagles were tickled that the order included the phrase “arbitrary and capricious.” The last time that phrase was used in a major immigration case before the court, it was part of a 5-4 decision saving the Deferred Action on Childhood Arrivals program, or DACA.

“We do not decide whether DACA or its rescission are sound policies,” Chief Justice John Roberts wrote in last year’s majority opinion. “The wisdom of those decisions is none of our concern. Here we address only whether the Administration complied with the procedural requirements in the law that insist on ‘a reasoned explanation for its action.’”

Turning that reasoning around and using it against Biden — even citing the DACA case in Tuesday’s order — must have felt good for the five conservative justices not named Roberts. Also, I’m not a lawyer, let alone an expert on the Administrative Procedure Act, but what “reasoned explanation” was missing in the seven-page memo Mayorkas issued in June outlining the change, aside from the anti-immigration talking points that Kacsmaryk cited in his decision?

Second, and more troubling, the return of the Remain in Mexico policy shows the lasting impact of Trump’s reshaping of the federal bench. Kacsmaryk was one of 170 district judges Trump appointed. According to a tally in January from the Pew Research Center, that cohort made up 27 percent of active district judges.

Pew also noted that 54 appeals judgeships were filled in Trump’s four-year term, one fewer than former President Barack Obama confirmed in two terms. The 5th Circuit, which denied Biden’s request for a stay, has six active judges from the Trump era out of 15 total. Two of them joined the chief judge of the court, who was appointed during George W. Bush’s second term, in drafting that denial. And, of course, Trump managed to get three Supreme Court justices — a third of the court — confirmed.

The rejection by the courts should cause us to question whether a major chunk the judicial branch is truly neutral in immigration cases.

Biden’s immigration efforts have been far from perfect. His administration bears sole responsibility for the abominable decision to uphold a public health rule that Trump activated to turn away hundreds of thousands of migrants during the pandemic. But ending the Remain in Mexico program was the easy and right call. The rejection by the courts should cause us to question whether a major chunk the judicial branch is truly neutral in immigration cases.

There’s no quick fix for this — it’ll be years, if not decades, before most of Trump’s appointees retire. Right now, though, the courts that Trump shaped are safeguarding his most prized policies. Those were put in place by Miller and other nativists who are fighting the browning of America, a fight that the latest census results show they’re losing.