First implemented in 2019 under President Donald Trump, Migrant Protection Protocols require migrants seeking asylum in the U.S. to wait in Mexico for their U.S. court hearings. The policy was intended to reduce instances of "catch and release" — when asylum seekers gain entry into the U.S. and then disappear before their court hearings to dodge the possibility of deportation.
As a presidential candidate, Joe Biden described the policy as inhumane because of the dangers migrants may face while waiting in Mexico. Reversing Migrant Protection Protocols, along with several more Trump immigration policies, was among Biden's first acts as president.
However, a federal court ruled in October that Biden improperly ended the policy and ordered the DHS to restart the program. Monday's ruling by a panel of three Republican-appointed judges affirmed that lower court decision after the Biden administration asked the Fifth Circuit to end the lower court's order. The court rejected an argument from the DHS that the case is moot and that courts cannot review the administration's actions.
"DHS’s proposed approach is as unlawful as it is illogical," Judge Andrew Oldham wrote.
"DHS claims the power to implement a massive policy reversal — affecting billions of dollars and countless people — simply by typing out a new Word document and posting it on the internet. No input from Congress, no ordinary rulemaking procedures, and no judicial review," he said.
"We address and reject each of the Government’s reviewability arguments and determine that DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum," he added.
Oldham made a point of sharply rebuking the government for skirting the administrative procedures enacted by Congress that the executive branch must follow to create or terminate policy.
"The Government's position in this case has far-reaching implications for the separation of powers and the rule of law. The government says it has unreviewable and unilateral discretion to create and eliminate entire components of the federal bureaucracy that affect countless people, tax dollars, and sovereign States. The Government also says it has unreviewable and unilateral discretion to ignore statutory limits imposed by Congress and to remake entire titles of the United States Code to suit the preferences of the executive branch. And the Government says it can do all of this by typing up a new 'memo' and posting it on the internet," Oldham wrote.
"If the Government were correct, it would supplant the rule of law with the rule of say-so. We hold the Government is wrong."
Under the ruling, DHS must continue the Remain in Mexico policy, though the Biden administration will likely appeal to the Supreme Court next.