Texas and Missouri Sue Biden Administration to Reinstate Remain-in-Mexico

The attorneys general of Texas and Missouri, Ken Paxton (R) and Eric Schmitt (R),  filed a lawsuit against the Biden administration in an effort to force the federal government to reinstate the Migrant Protection Protocols (MPP). The MPP, colloquially referred to as Remain-in-Mexico, was a Trump-era policy that held asylum-seeking migrants in Mexico while their cases proceeded through the immigration court system.

MPP prevented the disastrous policy of catch and release, where Border Patrol apprehended asylum-seeking aliens and then simply released them into the country with court date notice. Aliens could then – and often did – simply disappear into the interior of the country. President Donald Trump instituted MPP as part of a broader set of executive actions that ended the spring and summer 2019 southern border crisis.

Despite their overwhelming effectiveness at preventing border surges and discouraging fraudulent asylum claims, Joe Biden quickly ended the program upon becoming president. The result was disastrous. It helped spark a new border crisis that is quickly dwarfing the one in 2019. But unlike the Trump administration, the Biden administration seemingly has zero plans to do anything to stop it.

Frustrated with the effects of the ongoing crisis on their states, Paxton and Schmitt filed a lawsuit against the Biden administration. They argue that the Biden administration acted arbitrarily and capriciously in ending the program. Specifically, they argue that the administration violated the Administrative Procedure Act. They wrote in their filing that:

The result of this arbitrary and capricious decision has been a huge surge of Central American migrants, including thousands of unaccompanied minors, passing through Mexico in order to advance meritless asylum claims at the U.S. border. By dismantling the MPP, the administration has directly caused a massive uptick in illegal immigration through Central America, Mexico, and to the U.S. southern border.

The merits of the case seem strong. The Administrative Procedure Act (APA) requires the executive branch to exhaustively describe why they issue certain orders or memoranda, and courts routinely struck down Trump-era orders due to that administration’s failure to follow the APA. Given how quickly the Biden administration ended MPP, it is highly likely that they did not follow the APA to the full letter.

Further, the presiding judge in the case is a Trump appointee, Matthew J. Kacsmaryk. This fact of course does not guarantee a victory for Missouri and Texas, but certainly indicates that the plaintiffs may receive less hostility from the bench than they otherwise would in a different court or with a different judge.

While it will take some time before the issuance of a decision, Paxton and Schmitt asked Judge Kacsmaryk for a preliminary injunction against the Biden administration, which would reinstate the Remain-in-Mexico policy.

The attorneys general filed their case in the U.S. District Court for the Northern District of Texas. The case is Texas v. Biden (case number 2:21-cv-00067).