In yet another example of Trump judges improperly interfering with legal Biden Administration initiatives, Trump district court Judge Matthew Kacsmaryk invalidated an administration order that ended the troubling “Remain in Mexico” policy of the Trump Administration, and mandated that Biden reinstate the Trump policy. The August 2021 decision was in State of Texas v Biden.
In early 2019, the Trump Administration started by ordering the controversial “Remain in Mexico” program, under which people from Central America and other third countries who travel through Mexico to seek asylum in the US were ordered to return to Mexico to await asylum hearings. The policy produced significant criticism, including from Catholic authorities, because it forced people who have already shown a “credible fear of persecution” to wait for hearings in “dangerous and unsafe circumstances,” including situations in which “their lives may be at risk” and they lack humanitarian, health, and other services. As of December 2019, more than 59.000 asylum seekers and their families, including children, had been sent back to Mexico under the program.
One of the Biden Administration’s early actions on immigration was to suspend, and then terminate, the program. In a comprehensive June 1 memorandum, Homeland Security Secretary Alejandro Mayorkas explained the decision. Based on careful review, the Secretary determined that the program “does not adequately or sustainably enhance border management,” imposes “extensive operational burdens and other shortfalls,” helped cause some “44%” of asylum claims to be adjudicated without the asylum seeker being able to be present, imposed “additional responsibilities” on border security personnel that “detracted” from important functi0ns, and contradicted the Biden Administration’s commitment to “offering protection to people fleeing persecution and torture through an asylum system that reaches decisions in a fair and timely manner.” Mayorkas noted that in the previous few months under the new administration, more than 11,000 people previously sent to Mexico under the program had been “processed into the United States” with more to come.
Former President Trump severely criticized the ending of his program, and at least one of his lifetime appointees appeared to be listening. In response to a lawsuit filed by the states of Texas and Missouri, Trump district judge Kacsmaryk in Texas ruled that the Secretary’s decision to end the program was “arbitrary and capricious” and ordered the program reinstated. Much of Kacsmaryk’s decision sounds more like a pro-Trump policy brief than careful legal analysis. For example, he claimed that the Trump DHS had found that the program was “meeting its intended goals” even though Mayorkas found to the contrary. Although he conceded that review under the Administrative Procedure Act (APA) should be “highly deferential” to the agency, he claimed that the Secretary had “failed to consider” the program’s benefits as outlined in Trump-era DHS analyses, even though the Secretary stated that he had “carefully evaluated” those analyses. Without citing specific authority, Kacsmaryk basically disagreed with the decision to terminate the program and claimed it was improper as a matter of law.
Immigration experts have already severely criticized the decision. For example, Aaron Reichlin-Melnick of the American Immigration Council has characterized it as “mad,” noting that it credits the earlier “whitewashing reports” on the program, “ignores a mountain of evidence” against it, spends “just 71 words” to attempt to justify a nationwide order, and “violates basic principles of administrative law.”
The future of this issue is troubling at best. Although the judge stayed his order for seven days, any appellate order would need to come from the Fifth Circuit or the Supreme Court, which are well-stocked with Trump appointees with right-wing views on immigration. The Administration may seek to issue another memorandum to end the program that tries to comply with Kacsmaryk’s opinion, since even he conceded that the program can be “properly” ended, but that will take time and faces an uncertain future. The case is a very significant example of a Trump judge seriously interfering with a Biden Administration initiative. It emphasizes the importance of confirming more fair-minded federal jdges nominated by President Biden to federal courts at all levels, as part of our fight for our courts.
Update: On August 19, 2021, a three-judge panel of the Fifth Circuit including Trump judges Oldham and Wilson, refused to stay the Trump judge order pending appeal. On August 24, the Supreme Court denied a request for a stay in a shadow docket order; no votes were recorded, other than the three moderate jutices who dissented, which means that at least one Trump justice was part of the majority. As the Solicitor General’s office pointed out, in contrast, shadow docket orders during the Trump Administration often granted stays from such lower court orders
Uodate 2: In December 2021, a three-judge panel wiht two Trump judges affirmed Kacsmaryk’s order. In the meantime, the Biden Administration reinstated the policy but with revisions agreed to by Mexico to address humanitarian concerns.
Update 3: In June 2022 the Supreme Court reversed the Fifth Circuit and Kacsmaryk 5-4 and ruled that the Biden Administration can end the Remain in Mexico program. The case was sent back to the district court, which can consider procedural objections to the Biden Administration’s actions.