The Supreme Court gave President Joe Biden the political cover he needs to solve the border crisis Tuesday night when it rejected the Department of Justice’s request to stay a district court’s order requiring the Department of Homeland Security to implement President Donald Trump’s Migrant Protection Protocols program.
During the Democratic primary, Biden did tell migrants seeking to come to the United States, “If you want to flee … you should come.” And on his first day in office, Biden suspended Trump’s MPP program, which requires migrants claiming asylum to stay in Mexico while they wait for a hearing.
Perhaps Biden was expecting just a trickle of migrants to accept his invitation to enter the U.S. illegally and then claim asylum as a defense to deportation. Instead, a flood of migrants have answered his call, including a 21-year record high of 213,000 apprehensions last month. Biden’s Department of Homeland Security Secretary Alejandro Mayorkas has since been caught on tape admitting to Customs and Border Protection agents that the situation on the border is “unsustainable.”
Clearly, there is a massive humanitarian crisis at the southern border, and Biden’s policies are to blame. That is why every recent poll taken on the issue shows that most people disapprove of Biden’s handling of immigration.
Enter Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, who issued a ruling last week finding that DHS “failed to engage in reasoned decision making” when it ended the MPP on June 1.
Kacsmaryk noted that just 14% of migrants who claimed asylum in 2018 and 2019 were granted that status by an immigration judge. But while most migrants who claim asylum do not receive it, almost all of them get to stay in the U.S. as illegal immigrants because they “disappeared into the country before a judge denied their claim and simply became fugitives.”
After the MPP was implemented, however, Kacsmaryk found “border encounters with Central American families — who were the main driver of the crisis and comprise a majority of MPP-amenable aliens — decreased by approximately 80 percent.”
In other words, the MPP worked.
When Mayorkas ended the program on June 1, however, he failed to acknowledge that: 1.) the MPP worked, 2.) that career staff at DHS told him ending the program would create a border crisis, and 3.) data from the first months in which the program was suspended showed border apprehensions had “skyrocketed” as a result.
The only fact Mayorkas identified to justify ending the program was that the percentage of cases completed without the migrant present (in absentia) was 44%, which “raises questions for me about the design of the program.” But as Kacsmaryk pointed out, 44% was perfectly in line with the in absentia rate for 2015 (42%) and 2017 (43%).
After these findings, Kacsmaryk then ordered DHS to “enforce and implement MPP in good faith” until either Mayorkas could come up with a reasonable justification for ending the program or until the U.S. had the capacity to detain all migrants claiming asylum.
The Biden administration immediately appealed Kacsmaryk’s decision, but as Vice reported last week, there are also “senior officials in the Biden administration” who acknowledge that MPP worked and are discussing how to bring back a “gentler” version of the program.
The Supreme Court’s decision to keep Kacsmaryk’s order, in effect, could be a political opportunity for Biden. Biden could never admit that he was wrong to dismantle Trump’s MPP program, and the open borders activists that run the Democratic Party would never let him reimplement the program voluntarily.
But now thanks to the Supreme Court, Biden, or more likely Mayorkas, can say he has no choice but to close the “catch and release” loophole and bring back the “Remain in Mexico” program. DHS even issued a statement last night saying that while they will continue to appeal the case, they will also “comply with the order in good faith.”
There would be a lot of details to work out, including whether Mexico will continue to cooperate with the program (the appeals court did note, however, that Mexico never retracted its consent to the program). But this could be the political escape hatch that Biden needs to solve the border crisis he created.
