Judicial Imperialism and the “Remain in Mexico” Ruling, or David Martin Takes Down the Fifth Circuit’s Remain in Mexico Ruling

David A. Martin for Lawfare has some unkind words for the Fifth Circuit’s opinion halting the Biden administration’s effort to rescind President Trump’s “Remain in Mexico” policy:

“In December 2021 the Court of Appeals for the Fifth Circuit affirmed a sweeping injunction against President Biden’s termination of the “remain in Mexico” program (also known as the Migrant Protection Protocols or MPP). The central part of the 117-page opinion,  captioned Texas v. Biden, presents itself as a straightforward correction of an egregious misreading by the agency of certain statutory provisions enacted in 1996. Under the court’s interpretation, Congress has denied the Department of Homeland Security (DHS) any discretion to terminate the program;  MPP is mandatory unless the agency detains virtually all arriving migrants whose admissibility is in question until their admission cases are resolved.

The court’s opinion carries the reader along on what purports to be textual analysis and implacable logic. On closer examination, however, it is a startling exercise in judicial imperialism.” (bold added).

Click the link above for martin’s careful analysis. The Supreme Court is reviewing the Fifth Circuit decision and will hear oral arguments in April.

KJ