{"id":6180,"date":"2021-09-25T13:34:18","date_gmt":"2021-09-25T13:34:18","guid":{"rendered":"http:\/\/lonecandle.com\/?p=6180"},"modified":"2021-09-25T13:34:18","modified_gmt":"2021-09-25T13:34:18","slug":"the-supreme-courts-stunning-radical-immigration-decision-explained","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=6180","title":{"rendered":"The Supreme Court\u2019s stunning, radical immigration decision, explained"},"content":{"rendered":"\n

\n\n“It is not at all clear what the Biden administration is supposed to do in order to comply with the Court\u2019s decision in Biden v. Texas<\/em><\/a>. That decision suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is. And it forces the administration to engage in sensitive negotiations with at least one foreign government<\/a> without specifying what it needs to secure in those negotiations.<\/p>\n\n\n\n

One of the most foundational principles of court decisions involving foreign policy is that judges should be extraordinarily reluctant to mess around with foreign affairs<\/a>. The decision in Texas<\/em> defies this principle, fundamentally reshaping the balance of power between judges and elected officials in the process.<\/p>\n\n\n\n

 The central issue in Texas<\/em> is the Biden administration\u2019s decision to terminate former President Donald Trump\u2019s \u201cRemain in Mexico\u201d policy, which required many asylum seekers arriving at the United States\u2019 southern border to stay in Mexico while they awaited a hearing on their asylum claim. Although the policy was formally ended under Biden, it hasn\u2019t been in effect since March 2020, when the federal government imposed heightened restrictions on border crossings due to Covid-19<\/a>.<\/p>\n\n\n\n

Nevertheless, a Trump-appointed federal judge, Matthew Kacsmaryk, ordered the Biden administration to reinstate the policy, and he gave the administration exactly one week to do so. The Supreme Court\u2019s order effectively requires the administration to comply with Kacsmaryk\u2019s order, at least for now, with one vague and confusing modification.<\/p>\n\n\n\n

Technically, this case is still on appeal. The Biden administration requested a stay of Kacsmaryk\u2019s order while its appeal is pending. But the administration is now under an immediate obligation to comply with that order.<\/p>\n\n\n\n

And the Supreme Court\u2019s decision to deny the stay bodes very ill for the ultimate outcome of that appeal. The Court did not disclose every justice\u2019s vote, but liberal Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan did disclose that they dissent.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Kacsmaryk\u2019s opinion, it should be noted, was dead wrong<\/a>. It effectively claimed that a 1996 law required<\/em> the federal government to implement the Remain in Mexico policy permanently. That policy didn\u2019t even exist until 2019, so the upshot of Kacsmaryk\u2019s opinion is that the government violated the law for nearly a quarter-century and no one noticed.<\/p>\n\n\n\n

The Supreme Court does not go that far. Instead, it suggests that the Biden administration did not adequately explain why it chose to end the Remain in Mexico policy. In theory, that\u2019s a solvable problem. Secretary of Homeland Security Alejandro Mayorkas could comply with the Supreme Court\u2019s decision by issuing a new memo providing a more fleshed-out explanation.<\/p>\n\n\n\n

Except that the Supreme Court does not even offer a hint as to why it deemed the Biden administration\u2019s original explanation insufficient.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

” without an explanation as to how it could comply with the conservative justices\u2019 understanding of the law, the administration is left with two untenable choices. The first is that it can try to guess what, exactly, the justices want them to say in a new memo explaining its policy. The second is to make what could be a futile effort to reinstate Trump\u2019s policy.”<\/p>\n\n\n\n

“Mexico is likely to have strong opinions about this abrupt policy shift. The original Remain in Mexico policy came about only after the United States secured Mexico\u2019s cooperation<\/a>, and it is unlikely that the United States could successfully reimplement this policy without Mexico\u2019s permission.<\/p>\n\n\n\n

So one of the upshots of the Supreme Court\u2019s order is that the administration must now go, hat in hand, to the Mexican government and beg them to cooperate again.<\/p>\n\n\n\n

For decades, the Supreme Court warned the judiciary to avoid \u201cunwarranted judicial interference in the conduct of foreign policy<\/a>.\u201d Judges, the Court explained in Kiobel v. Royal Dutch Petroleum Co.<\/em><\/a> (2013), should be \u201cparticularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.\u201d<\/p>\n\n\n\n

Apparently that\u2019s all out the window now: Unless the Biden administration can figure out what it needs to put in a new memo explaining its policy, it must reopen diplomatic negotiations with Mexico (and possibly with Central American nations whose citizens are seeking asylum in the United States) in order to reinstate a policy that it does not agree with, and that it believes, in Mayorkas\u2019s words, will leave untold numbers of immigrants without \u201cstable access to housing, income, and safety<\/a>.\u201d”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“The decision upends the balance of power between the elected branches and the judiciary. It gives a right-wing judge extraordinary power to supervise sensitive diplomatic negotiations. And it most likely forces the administration to open negotiations with Mexico, while the Mexican government knows full well that the administration can\u2019t walk away from those negotiations without risking a contempt order.<\/p>\n\n\n\n

With this order, Republican-appointed judges are claiming the power to direct US foreign policy \u2014 and don\u2019t even feel obligated to explain themselves.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/2021\/8\/24\/22640424\/supreme-court-remain-in-mexico-trump-biden-samuel-alito-immigration<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“It is not at all clear what the Biden administration is supposed to do in order to comply with the Court\u2019s decision in Biden v. Texas. That decision suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is. And it forces the administration to engage in sensitive negotiations with at least one foreign government without specifying what it needs to secure in those negotiations.
\nOne of the most foundational principles of court decisions involving foreign policy is that judges should be extraordinarily reluctant to mess around with foreign affairs. The decision in Texas defies this principle, fundamentally reshaping the balance of power between judges and elected officials in the process.<\/p>\n

The central issue in Texas is the Biden administration\u2019s decision to terminate former President Donald Trump\u2019s \u201cRemain in Mexico\u201d policy, which required many asylum seekers arriving at the United States\u2019 southern border to stay in Mexico while they awaited a hearing on their asylum claim. Although the policy was formally ended under Biden, it hasn\u2019t been in effect since March 2020, when the federal government imposed heightened restrictions on border crossings due to Covid-19.<\/p>\n

Nevertheless, a Trump-appointed federal judge, Matthew Kacsmaryk, ordered the Biden administration to reinstate the policy, and he gave the administration exactly one week to do so. The Supreme Court\u2019s order effectively requires the administration to comply with Kacsmaryk\u2019s order, at least for now, with one vague and confusing modification.<\/p>\n

Technically, this case is still on appeal. The Biden administration requested a stay of Kacsmaryk\u2019s order while its appeal is pending. But the administration is now under an immediate obligation to comply with that order.<\/p>\n

And the Supreme Court\u2019s decision to deny the stay bodes very ill for the ultimate outcome of that appeal. The Court did not disclose every justice\u2019s vote, but liberal Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan did disclose that they dissent.”<\/p>\n

…<\/p>\n

“Kacsmaryk\u2019s opinion, it should be noted, was dead wrong. It effectively claimed that a 1996 law required the federal government to implement the Remain in Mexico policy permanently. That policy didn\u2019t even exist until 2019, so the upshot of Kacsmaryk\u2019s opinion is that the government violated the law for nearly a quarter-century and no one noticed.<\/p>\n

The Supreme Court does not go that far. Instead, it suggests that the Biden administration did not adequately explain why it chose to end the Remain in Mexico policy. In theory, that\u2019s a solvable problem. Secretary of Homeland Security Alejandro Mayorkas could comply with the Supreme Court\u2019s decision by issuing a new memo providing a more fleshed-out explanation.<\/p>\n

Except that the Supreme Court does not even offer a hint as to why it deemed the Biden administration\u2019s original explanation insufficient.”<\/p>\n

…<\/p>\n

” without an explanation as to how it could comply with the conservative justices\u2019 understanding of the law, the administration is left with two untenable choices. The first is that it can try to guess what, exactly, the justices want them to say in a new memo explaining its policy. The second is to make what could be a futile effort to reinstate Trump\u2019s policy.”<\/p>\n

“Mexico is likely to have strong opinions about this abrupt policy shift. The original Remain in Mexico policy came about only after the United States secured Mexico\u2019s cooperation, and it is unlikely that the United States could successfully reimplement this policy without Mexico\u2019s permission.<\/p>\n

So one of the upshots of the Supreme Court\u2019s order is that the administration must now go, hat in hand, to the Mexican government and beg them to cooperate again.<\/p>\n

For decades, the Supreme Court warned the judiciary to avoid \u201cunwarranted judicial interference in the conduct of foreign policy.\u201d Judges, the Court explained in Kiobel v. Royal Dutch Petroleum Co. (2013), should be \u201cparticularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.\u201d<\/p>\n

Apparently that\u2019s all out the window now: Unless the Biden administration can figure out what it needs to put in a new memo explaining its policy, it must reopen diplomatic negotiations with Mexico (and possibly with Central American nations whose citizens are seeking asylum in the United States) in order to reinstate a policy that it does not agree with, and that it believes, in Mayorkas\u2019s words, will leave untold numbers of immigrants without \u201cstable access to housing, income, and safety.\u201d”<\/p>\n

…<\/p>\n

“The decision upends the balance of power between the elected branches and the judiciary. It gives a right-wing judge extraordinary power to supervise sensitive diplomatic negotiations. And it most likely forces the administration to open negotiations with Mexico, while the Mexican government knows full well that the administration can\u2019t walk away from those negotiations without risking a contempt order.<\/p>\n

With this order, Republican-appointed judges are claiming the power to direct US foreign policy \u2014 and don\u2019t even feel obligated to explain themselves.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[355,25,1255,528],"class_list":["post-6180","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-foreign-policy","tag-immigration","tag-separation-of-powers","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/6180","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6180"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/6180\/revisions"}],"predecessor-version":[{"id":6181,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/6180\/revisions\/6181"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6180"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6180"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6180"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}