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Trump’s SCOTUS ‘Win’ on Remain-in-Mexico Policy Isn’t All It’s Cracked Up to Be


Conservative lawmakers and news outlets wasted no time celebrating the Trump Administration’s victory at the Supreme Court on its “Remain-in-Mexico” program. While it’s true SCOTUS sided with the government on Wednesday, the ruling is still a far cry from a big win.

The appeal from the U.S. Court of Appeals for the Ninth Circuit reviewed a preliminary injunction against the Trump administration’s hard-line immigration policy known as Migrant Protection Protocols (MPP); under MPP – also known as “Remain in Mexico,” refugees and asylum-seekers are deprived due process and access to counsel, and must remain in Mexico indefinitely while their asylum applications are processed. The program has been widely criticized by immigration advocates who say it has caused a dangerous humanitarian crisis at the U.S.-Mexico border.

In late February, the Ninth Circuit issued an injunction, ruling that asylum-seekers must be allowed into the United States while their cases make their way through American immigration courts – a process that can take months or even years. In its ruling, the court called the Trump administration’s position on the policy “exactly backwards.”

The Supreme Court reversed the Ninth Circuit’s injunction Wednesday in a one-paragraph unsigned order, reading as follows:


The application for stay presented to Justice Kagan and by her referred to the Court is granted, and the district court’s April 8, 2019 order granting a preliminary injunction is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Sotomayor would deny the application.

Importantly, SCOTUS’s ruling isn’t about whether MPP is legal. It’s about whether the program should temporarily remain in effect while the court decides whether it’s legal. SCOTUS knows that a petition for certiorari will be coming soon and that SCOTUS will vote to hear the case; the injunction dispute is but a small skirmish in the larger war. While SCOTUS may not agree with the appellate court that a temporary halt was appropriate, it may well choose to strike down MPP after hearing the full case.

Notably, the short SCOTUS opinion was unsigned, thereby providing no information as to how the justices voted. Our only indication of votes is that Justice Sonia Sotomayor went on record saying that she would have sided with the Ninth Circuit – and upheld the injunction.

This case isn’t the first time Sotomayor has spoken up loudly against other members of the Court.  In another immigration-related case, Sotomayor penned a fiery dissent, in which she accused conservative justices of “putting a thumb on the scale in favor of” the Trump administration. Although Sotomayor stood alone in her written dissent on this preliminary ruling, the fight for MPP’s legality is anything but certain. The program will surely face an uphill battle before at least some of the Court’s more liberal justices. And who knows what Chief Justice John Roberts thinks.

[Photo by Mario Tama/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos