The conservative Supreme Court surprisingly sided with the Biden administration and asylum-seekers last June, ruling in a 6-3 decision that officials could end the Remain in Mexico policy. The prior year, a right-wing judge appointed by the previous administration made himself an arbiter of U.S. foreign policy, and revived the policy under a GOP lawsuit.
While the justices sided with the president, they also sent the case back down to the judge for further review. Judge Matthew Kacsmaryk (if that name sounds familiar, you’ll know why soon) has now returned with an unsurprising ruling temporarily stopping the Biden administration from ending the policy.
But experts say that because of a series of actions taken since the Supreme Court’s decision, the policy may not come back at all.
RELATED STORY: In surprising ruling, Supreme Court sides with Biden admin on anti-asylum Remain in Mexico policy
Campaign Action
The Biden administration led by Department of Homeland Security (DHS) Sec. Alejandro Mayorkas stopped enrolling new asylum-seekers in Remain in Mexico months ago, suspending (but not officially terminating) the policy after the Supreme Court finally certified its ruling in August. Then in October, Mexico confirmed on its end that Remain in Mexico was over.
That part is key: carrying out this policy has required Mexico’s cooperation, because that’s where asylum-seekers were being sent by U.S. officials to wait for their U.S. immigration court dates. Both parties have already agreed that the policy is done, and the policy can’t officially come back without Mexico’s approval. Kacsmaryk certainly can’t make Mexico do it (as much as he’d probably like to). I mean, you can keep repeating that Mexico has to pay for the wall, but it doesn’t mean it will (and it never did).
Civil rights attorney Karen Tumlin and American Immigration Council Policy Director Aaron Reichlin-Melnick are much, much smarter than me and really dig into the case in Twitter threads here and here, but it seems like the Mexico factor kinda makes the whole ruling “moot.” Maybe. What is very clear is that this judge is, much like the administration that appointed him, a tyrant in robes.
“You would think that Kascmaryk [sic] would have some judicial modesty after a 6-3 defeat from SCOTUS, but reading the decision is to conclude that there are no circumstances that exist under which Kascmaryk would ever allow the Biden admin to end Remain in Mexico, SCOTUS be damned,” Reichlin-Melnick tweeted. “Tonight’s Kascmaryk decision is judicial activism on steroids. SCOTUS told Judge Kascmaryk that Mayorkas has the authority to end Remain in Mexico. But it’s clear that Kascmaryk does not care about that and will not let Mayorkas exercise that authority until overturned again.”
Remember how I wrote that Kacsmaryk’s name might sound familiar? Well, he’s the same right-wing judge that just a couple of days ago issued a decision that “makes the inevitable move against birth control rights,” Daily Kos’ Laura Clawson wrote. Kacsmaryk’s 2021 decision reviving Remain in Mexico had been criticized as non-sensical and “bizarre”; the birth control decision isn’t much different, with Kacsmaryk ignoring “a ton of legal precedent” because he thinks of himself as a “warrior” of the “right-wing policing of female bodies and sexuality,” Clawson continued.
“Judge Kacsmaryk’s decision does NOT order Biden to restart negotiations to bring the program back,” Reichlin-Melnick concluded in the Remain in Mexico matter. “So, effectively, it should still be dead.” We hope. In its report, the Associated Press said Kacsmaryk “didn’t order the policy reinstated. The impact on the program wasn’t immediately clear.”
RELATED STORIES:
Migrant allowed to enter U.S. following end of Remain in Mexico says he feels 'relieved'
Supreme Court to decide whether one federal judge can sabotage Biden's immigration agenda
Judge appointed by previous president wants to revive this awful policy—and he may succeed
