The U.S. Supreme Court has upheld a Texas judge’s ruling that President Joe Biden was wrong to halt the Migrant Protection Protocols, also known as the “Remain in Mexico” policy, and former U.S. Rep. John N. Hostettler (R-Ind.) said the high court’s 6-3 ruling was somewhat surprising but consistent with prior rulings.
The program, started during the Trump administration, mandates that migrants who sought asylum should stay in Mexico until a determination was made. It was announced Dec. 20, 2018, and became federal law from Jan. 25, 2019, when it was first imposed by the U.S. Department of Homeland Security, until Jan. 20, 2021, when Biden suspended it. DHS ended all enforcement June 1.
Since Biden took office and ended the program, the number of people entering the United States has risen dramatically, as have problems along the border. More than 180,000 “encounters” with undocumented people seeking to enter the U.S. were reported in May.
Human traffickers are bringing people across, raising concerns about their safety. Spikes in drugs, sex trafficking and terrorism have been reported.
But migrants, including unaccompanied children, are seeking a better life in the United States, fleeing crime, poverty and a lack of opportunity in Guatemala, El Salvador and Honduras, as well as other countries.
As a result, the states of Texas and Missouri sued to have the protocols reinstated. On Aug. 13, U.S. District Judge Matthew Kacsmaryk of Amarillo ruled in their favor. The Fifth Circuit Court of Appeals declined to issue a stay, sending the case to the Supreme Court.
Kacsmaryk said the Biden administration had “failed to consider several critical factors” in terminating the program.
Hostettler said the high court was consistent with prior rulings.
“The court’s objection to the Biden administration’s suspension of the program [Migrant Protection Protocols/'Remain in Mexico'] was consistent with previous court objections to Trump administration implementation of other directives without properly — according to the judiciary — adhering to the requirements of the Administrative Procedure Act,” he said.
Will this ruling help alleviate the border crisis?
“Time will tell,” Hostettler said. “The program has, from the beginning, depended on the participation of the Mexican government. Given that the Supreme Court’s influence doesn’t extend south of the Rio Grande, the opinion may be a moot point. The Mexican government will ultimately determine if this program is reinstituted, not the U.S. Supreme Court.”
Biden might have expected the court to uphold his policy, the former congressman said.
“It at least is evidence that he must’ve believed his actions wouldn’t be held to the same standards as the Trump administration by the Supreme Court,” Hostettler said.
Hostettler, 60, is a Republican who represented Indiana’s Eighth District for six terms, from 1995-2007. He is vice president of federal affairs for States Trust, a Texas Public Policy Foundation initiative promoting state-based solutions to restore the principle of federalism, holding up states as innovators of effective public policy.
Since returning to private life, Hostettler founded the publishing company Publius House, wrote two books and founded the Constitution Institute, which held seminars on the U.S. Constitution in Indiana. He joined TPPF in February 2019.