In December, the Trump-era “Remain in Mexico” program resumed under President Joe Biden’s administration. The immigration policy, formally known as the Migrant Protection Protocols, requires the U.S. government to return certain asylum-seekers to Mexico pending the adjudication of their immigration cases in American courts.
Naturally, immigrant rights advocates expressed frustration. On the presidential campaign trail, Biden had rallied against MPP but was compelled to reach a deal with Mexico last month after the U.S Supreme Court let stand a lower court ruling that the policy be restored. Activists claim the policy endangers asylum seekers’ health, safety and well-being.
Although that response is understandable, these developments highlight the conservative courts’ role in stymying the Biden-Harris agenda. While the popular vote and the Electoral College delivered a Biden victory, Republican judicial appointees are subverting the people’s will. Indeed, several racial and ethnic justice cases reveal an ideological rift with far-reaching effects on historically marginalized groups.
Remain in Mexico—a closer look
After the Trump administration announced MPP in 2018, the ACLU, Southern Poverty Law Center and others filed a lawsuit, Innovation Law Lab v. Nielsen, to stop it. While the Ninth Circuit Court of Appeals, known for its ideologically liberal leanings, granted a preliminary injunction, the Trump administration appealed. The Supreme Court allowed the policy to go into effect.
In 2021, pursuant to his campaign promise, President Biden terminated MPP. The Department of Homeland Security explained that the policy did not enhance border security and that its costs outweighed any benefits. As such, the Supreme Court dismissed Innovation as moot.
However, Republicans in Texas and Missouri challenged the policy change in federal district court. They argued that the rescission increased unlawful immigration. The states also contended that they shouldered an undue financial burden associated with immigrant access to driver’s licenses, health care and education.
A Texas federal district court agreed. Citing the border crisis and the alleged negative economic impact, U.S. District Judge Matthew J. Kacsmaryk found MPP’s rescission to be unlawful. Significantly, Trump appointed Kacsmaryk.
In response, the Biden administration appealed to the Fifth Circuit Court of Appeals. A panel of three judges—all of them Republican appointees—upheld the lower court’s decision. Significantly, Trump appointed two of those judges (Andrew Oldham and Cory Wilson); President George W. Bush appointed the third (Jennifer Elrod).
Again, the Biden administration appealed. At the Supreme Court, DHS sought and was denied an emergency stay to avoid MPP’s resumption. The high court reasoned that DHS had not shown a likelihood of succeeding on the merits. Significantly, all three liberal justices would have sided with the Biden administration, thus revealing an ideological divide.
While immigrant rights advocates are upset with MPP’s resumption, arguably the conservative courts are most responsible for the restoration of this Trump-era immigration policy. In fact, following the high court’s decision, the Biden administration refiled a new legal memo attempting to end MPP. But on December 13, the Fifth Circuit again refused to allow the administration to do so. That panel of three judges is also all Republican appointees. The case is now pending before the Supreme Court.
Still, these developments are part of a broader trend involving racial and ethnic justice cases that are being decided by conservative-leaning courts.
Racial and ethnic justice
Other recent cases reveal the impact of politics in the administration of law with far-reaching effects for historically marginalized groups.
Representative is Alabama Association of Realtors, et al. v. HHS, which centers on the federal moratorium on evictions amid COVID-19. In March 2020, Congress passed the Coronavirus Aid, Relief and Economic Security Act, which imposed a 120-day eviction moratorium. When Congress did not renew it, the CDC imposed its own moratorium and cited the Public Health Service Act to do so.
In response, the Alabama Association of Realtors and Georgia challenged the moratorium in federal district court. Ultimately, the U.S. District Court for the District of Columbia vacated the moratorium concluding that the statute does not authorize a moratorium.
Significantly, Judge Dabney Fredrich, who penned the opinion, is a Trump appointee.
The Biden administration appealed to the Supreme Court, which upheld the lower court’s decision and focused on the statutory construction of two sentences. The first permits the government to take actions “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or from one state or possession to another.” The second provides examples of the types of actions that may be taken such as inspection, fumigation, disinfection, sanitation and pest extermination.
Significantly, the Biden administration argued that the first sentence gave the CDC broad authority to take whatever measures necessary to control the spread of COVID-19, including the moratorium.
But the conservative justices adopted a much more restrictive interpretative approach explaining that the CDC is restricted to the specific measures stated. In its opinion, the court prioritized the financial interests of landlords owed rent payments rather than renters in need of relief.
All three liberal justices dissented. As such, this case not only reveals the role of the conservative courts but also an ideological rift that emerges around racial and ethnic justice interests. According to research from the Joint Center for Housing Studies of Harvard University, Black and Hispanic renters faced the greatest threat of eviction during the pandemic.
Why it matters
These developments have far-reaching implications for subordinated racial, ethnic and religious minority groups. For instance, local legislators have enacted bills in eight states banning the teaching of critical race theory in public schools, colleges and universities. Similar measures have been or soon will be introduced in 20 more.
The ACLU recently filed a related legal challenge in Oklahoma to allow educators to teach about racism. How will the conservative courts respond to such challenges?
These cases and trends demonstrate the significance of structural judicial reforms to preserve the integrity of the courts. While immigrant rights advocates, racial justice activists and subordinated communities do not typically center this, perhaps it’s time to reconsider.
Engy Abdelkader is a council member of the ABA Section of Civil Rights and Social Justice and chairwoman of the section’s Rights of Immigrants Committee. She also is a fellow of the American Bar Foundation. She teaches at the Mitchell Hamline School of Law and Rutgers University.
Editor’s note: This article was adapted from a lecture delivered at the Mitchell Hamline School of Law event Nov. 9.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.