WASHINTON, DC – Immigration took center stage in the nation’s courts this week with former President Donald Trump’s impact on full display, between a Trump-appointed judge announcing he would block President Joe Biden’s decision to end Trump’s Title 42 border protections and Trump appointees on the Supreme Court suggesting they might vote to force Biden to continue another of Trump’s signature border policies, Remain in Mexico.
Remain in Mexico is the popular handle for the Migrant Protection Protocols (MPP), under which certain categories of illegal aliens crossing the Mexican border are sent back across the border to Mexico to remain there while their immigration claims are pending in the federal system. The Biden administration stopped enforcing MPP.
The states of Texas and Missouri sued Biden and Homeland Security Secretary Alejandro Mayorkas, claiming they violated federal immigration law in stopping MPP. Trump-appointed Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas held that Biden and Mayorkas’s move violated the Administrative Procedure Act (APA) and federal immigration law, including the Department of Homeland Security’s obligation under 8 U.S.C. § 1225 to detain certain types of illegal aliens until they can be removed from the country.
Texas Attorney General Ken Paxton (2R) and Missouri Attorney General Eric Schmitt (2L) speak to reporters in front of the US Supreme Court in Washington, DC, on April 26, 2022. The Supreme Court will hear oral arguments Tuesday in the Biden v. Texas case, which will determine if the Biden administration must continue to enforce a Trump-era program known as the Remain in Mexico policy. (STEFANI REYNOLDS/AFP via Getty Images)
Homeland Security Secretary Alejandro Mayorkas gestures as he speaks at a press briefing at the White House on September 24, 2021 in Washington, DC. (Anna Moneymaker/Getty Images)
When the Justice Department appealed that decision, Trump-appointed Judge Andrew Oldham wrote the decision for a Trump-appointed majority on the U.S. Court of Appeals for the Fifth Circuit affirming Kacsmaryk’s judgment.
None of those judges are beholden to the former president. Instead, each was chosen through a vetting process the Trump White House and Justice Department put in place to select nominees who follow a textualist approach to interpreting federal law and proven originalists on the meaning of the U.S. Constitution. MPP is based on such a reading of the law.
The Supreme Court heard arguments Tuesday in that case, Texas v. Biden. During arguments, rock-ribbed conservative Justices Clarence Thomas and Samuel Alito predictably asked tough questions of U.S. Solicitor General Elizabeth Prelogar, seeming to agree with Texas Solicitor General Judd Stone’s legal position. Chief Justice John Roberts asked hard questions of both sides, not signaling which way he was leaning.
To get to five votes to build a majority on the nine-justice Supreme Court, Texas would have to get all three Trump-appointed justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The first is a libertarian more than a conservative, the second has shown he has an establishment-moderate streak, and the third is brand-new. Legal experts do not take any of their votes for granted.
But during arguments, these Trump-appointed jurists suggested that they too were inclined to rule in favor of Texas. All three made comments and asked questions that looked askance at the Biden administration’s arguments.
As one example involving Section 1225’s language for mandatory detention until deportation, Kavanaugh noted that illegal aliens were being “paroled” (i.e., released into the general public), and skeptically asked Prelogar if Congress ever said regarding the statute permitting parole on a case-by-case basis that if there were not enough detention beds, “hundreds of thousands of people would just be paroled into the United States without being lawfully admitted?”
While the country waits for a decision in that case – expected at the end of June – another court battle is playing out with another Trump immigration policy.
Title 42 is a policy invoking the authority of the Centers for Disease Control and Prevention (CDC), under which many illegal aliens can be immediately returned back across the Mexican border to prevent the possibility of their spreading Covid-19 in the United States.
This policy sometimes results in over half of illegal border crossers being immediately turned around at the border, such as in March 2022, when one source said 120,000 out of 220,000 border crossers – roughly 55 percent – were prevented from staying in the United States under Title 42.
But Biden’s CDC announced on April 1 that Covid-19 had become so insignificant a threat to public health that it would end Title 42 in May, potentially doubling the number of illegal alien border crossers staying in the United States.
Attorneys general from Arizona, Louisiana, and Missouri filed another federal lawsuit invoking the APA to block the CDC’s decision. On Monday, Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana announced that he will issue a temporary restraining order (TRO) to force the Biden administration to continue Title 42, instructing the parties to provide certain details for him, which he will then incorporate into a court order. Summerhays, too, was appointed by Trump.
Robert R. Summerhays, President Donald Trump’s nominee for District Judge for the Western District of Louisiana, is sworn in during a U. S. Senate Judiciary Committee Hearing on Capitol Hill in Washington on Wednesday, April 11, 2018. (Harry Hamburg/AP)
A TRO is a temporary measure that lasts only until a court can write a full decision on a preliminary injunction (PI), but the fact that the judge is so forcefully asserting a TRO makes it plain that he will later convert that order into a PI that would last all the way to the end of the lawsuit, and will doubtless be appealed (once again to the Fifth Circuit) in what by next year could be another immigration case at the Supreme Court.
That means Title 42 will endure for a few more months at minimum. A TRO cannot be appealed, but only lasts a couple weeks. Once Summerhays converts it into a PI – sometime in June – the Justice Department can ask for the Fifth Circuit to expedite the appeal. Even then, it would probably be October at the earliest before the Fifth Circuit issues a decision. Assuming that the Fifth Circuit affirms the Louisiana-based judge, the Justice Department could request a stay from the Supreme Court, but such stays are very rarely granted.
Instead, depending on the exact timing of the Fifth Circuit’s decision and whether that court expedites the proceedings, this case is likely either to go to the Supreme Court during next year’s term with a decision by June 2023, or, if the New Orleans-based appeals court takes several months to decide the appeal, it would go to the Supreme Court in the fall of 2023, with a decision in the first half of 2024.
Either way, Title 42 looks likely to stay in place for more than another year, and quite possibly will be decided in the next presidential election year. Coupled with the possible victory of MPP at the Supreme Court, former President Trump’s immigration legacy could loom large when voters’ eyes are focused once again on who will occupy the White House.
Ken Klukowski is a practicing lawyer who served in the White House and Justice Department, and is a Breitbart News contributor.