Jurisprudence

The Judicial Crusade to Revive Trump’s Border Policy Isn’t Going So Well

Donald Trump stands in front of a wall at the southern border.
Donald Trump at the southern border. Brandon Bell/Getty Images

Donald Trump’s judges share many traits, but a devotion to the truth is not one of them. Case in point: For more than a month, these judges have insisted that the Biden administration could somehow revive Trump’s “Remain in Mexico” policy without support from the Mexican government. On the basis of that assertion, Trump’s judges have ordered President Joe Biden to restore his predecessor’s policy—forcing Mexico to accept thousands of migrants awaiting asylum hearings in the United States. This judicial intrusion into foreign policy even got approval from the Supreme Court’s conservative supermajority, which seemed to buy into the notion that the U.S. can dictate Mexico’s immigration policies.

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Now, however, the federal judiciary’s fantasy has collided with reality. In recent court filings, an exasperated Department of Justice revealed that the government has not yet revived Remain in Mexico, as it is obligated to do by court order, because the Mexican government refuses to comply. No matter how loudly Trump judges claim otherwise, it turns out that Biden cannot unilaterally impose new immigration rules on a sovereign nation. And this inconvenient fact has stymied the courts’ attempt to seize Biden’s power over foreign affairs for themselves.

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Remain in Mexico, also known as the Migrant Protection Protocols or MPP, marked one of Trump’s cruelest efforts to keep refugees out of the country. Under the policy, immigrants from Central America had to stay on the Mexican side of the border while awaiting asylum hearings in the U.S.. Out of desperation, migrants created massive tent cities rife with violence inflicted by both opportunistic criminals and corrupt government officials.

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In February 2020, a federal appeals court ruled that MPP was illegal; just a few weeks later, the Trump administration essentially suspended the program, replacing it with COVID-related restrictions at the border. MPP  was only in effect for 14 months. In June 2021, Biden’s Department of Homeland Security issued a memo formally repealing MPP, which had been suspended for about 17 months. Taking the long-dormant, illegal policy off the books should have been easy.

But it wasn’t, because Texas and Missouri asked U.S. District Judge Matthew Kacsmaryk, a Trump nominee, to intervene. These states argued that the Biden administration’s repeal of MPP violated the law. Kacsmaryk agreed. In a stunning decision, the judge directed the government to restore MPP in a single week. The 5th U.S. Circuit Court of Appeals declined to halt Kacsmaryk’s order, as did the Supreme Court by a 6–3 vote. Americans might think their nation’s border policy lies in the hands of Congress and the executive branch. But thanks to these decisions, much of this policy is now decreed by Matthew Kacsmaryk, a single Trump judge in Amarillo, Texas.

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It is one thing for Kacsmaryk to proclaim the law from his Amarillo courthouse. It is quite another for him to transform those proclamations into action. Remember: The Trump administration created MPP so it could send refugees back to Mexico while they awaited asylum hearings. To accomplish this goal, the federal government needed Mexico to accept these refugees, most of whom came from Central America and were not Mexican citizens. Then-Mexican Ambassador Martha Bárcena negotiated an agreement between the two governments that allowed the U.S. to send migrants back.  This deal effectively concluded when the Trump administration replaced MPP with public health–related border controls at the outset of the pandemic.

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Kacsmaryk denied this history in his opinion. After the Justice Department explained that it could not restore MPP without Mexico’s cooperation, he retorted that its claim was “not correct.” In an extraordinary footnote, Kacsmaryk declared that the U.S. “initiated MPP unilaterally pursuant to U.S. law, not pursuant to bilateral agreement.” And since it could be “adopted and launched unilaterally” before, it can be again.

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A panel of judges for the 5th Circuit accepted this reasoning. (The panel was made up of two Trump judges, Andy Oldham and Cory Wilson, and one ultra-partisan George W. Bush nominee, Jennifer Walker Elrod.) It repeated Kacsmaryk’s whopper that “DHS created MPP unilaterally and without any previous agreement with Mexico,” adding: “DHS does not explain why it cannot likewise restart MPP unilaterally.” (Actually, the government spilled a great deal of ink in its briefs explaining why MPP requires the Mexican government’s assent.) These judges seemed to believe that the U.S.  can force Mexico to take in thousands of Central American migrants.

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They were wrong. On Sept. 15, the Department of Justice filed an update on the restoration of MPP with Kacsmaryk. (The judge ordered the government to file monthly status updates on MPP’s revival.) Mexico, the DOJ wrote, “has not yet agreed to accept [migrant] returns under the Court-ordered restart of MPP.” The program “cannot function without Mexico’s agreement to accept individuals returned from the United States under the program.”  Restarting the protocols  “requires diplomatic engagement and concurrence from Mexico.” But so far, the has only “reaffirmed its sovereign right to admit or reject the entry of foreigners into its territory.” Mexico’s Ministry of Foreign Affairs also announced that it is “not bound” by Kacsmaryk’s decision.

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The DOJ included a declaration from Blas Nuñez-Neto, the vice chair of the government’s Southwest Border Taskforce, attesting to these problems. Nuñez-Neto wrote that U.S. officials are engagined in “sensitive,” “ongoing diplomatic engagements,” but the Mexican government has not yet agreed to “a number of foundational matters.” Specifically, the two governments are still negotiating who can be returned to Mexico under MPP, when and how they are returned, and “what kind of support these individuals will receive while in Mexico.” So, basically, everything.

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Pause here to consider how extraordinary these documents are. For decades, the Supreme Court has stressed that the federal judiciary should grant broad deference to the president’s constitutional authority over foreign affairs and, whenever possible , stay out of foreign policy disputes. Now a lone federal judge is overseeing negotiations with Mexican diplomats over border policy. U.S. officials may face court sanctions if they do not succeed in persuading Mexico to revive MPP. And because the Mexican government knows this, it has the upper hand in negotiations: U.S. officials must strike a deal—even one immensely disfavorable to their own country—because they are under court order to do so.

Kacsmaryk, Elrod, Oldham, and Wilson assured us that this scenario would never come to pass. They were lying. But life-tenured federal judges don’t have to face the consequences of their own falsehoods. Instead, the consequences come crashing down on the losers: the U.S. government, American diplomats, and, eventually, thousands of refugees expelled into violent tent cities on the Mexican side of the border.

The dead hand of the Trump administration already controls much of the U.S. government through the federal judiciary. Now it is reaching into other nations, too.

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