Thread by @FreedomWorks

🧵Today, SCOTUS issued its decision in Biden v. TX. The issue was whether the Biden Admin legally canceled the Trump Admin’s Migrant Protection Protocols (remain in Mexico).

In a 5-4 vote, the Court held for the Biden Admin. #ampFW ampfw.org/3uePrhq

#ampFW: In this 5-4 vote, Chief Justice Roberts and Justice Kavanaugh joined the liberals.

In 2018, w/ a surge on our Southern Border, President Trump’s DHS promulgated MPP to prevent illegal aliens w/ meritless asylum claims from being released into the US.

Instead, if they arrived via Mexico, they had to return pending further proceedings.

Mexico agreed w/ this.

#ampFW: After 9 months of MPP, DHS found it effective b/c it (1) directly reduced the # of aliens unlawfully released into the US and (2) deterred aliens from attempting to cross the border.

Border encounters decreased 64% overall, and 80% in Northern Triangle countries.

#ampFW: But on President Biden’s 1st day in office, DHS issued a 3-line memo suspending MPP.

DHS then systematically dismantled MPP w/ no review or explanation. After the suspension, border encounters jumped to 75k in Jan. 2021 and 173k in April 2021.

#ampFW: Texas, Missouri, & other states sued arguing MPP's suspension w/ no reason violated the Administrative Procedure Act b/c it was arbitrary and capricious as DHS ignored MPP’s benefits & the state’s reliance. After months of litigation, DHS terminated MPP w/ a 7-page memo.

#ampFW: But, DHS explanation did NOT explain its previously favorable view of MPP.

The Biden Admin then lost in the District Court and 5th Circuit as both courts held the suspension unlawful. Biden's DOJ next petitioned SCOTUS for relief on the shadow docket which was declined.

After SCOTUS denied relief, the case went back to the 5th Circuit. 2 days before oral argument, DHS provided a 26 page memo for terminating MPP. DHS then tried to moot (end) TX’s suit based on the new explanation. 5th Circuit STRONGLY DISAGREED and held the termination illegal.

The 5th Circuit held DHS came w/ unclean hands (acted in bad faith trying to moot the case), and failed to consider several relevant factors to ending MPP including (1) State’s reliance, (2) MPP’s benefits, (3) potential alternatives to MPP, (4) legal implications of ending MPP.

#ampFW: The Supreme Court first rejected TX’s argument that under the Immigration and Nationality Act (INA), DHS was REQUIRED to keep MPP.

Because the statute said the Secretary “MAY” return aliens to that territory pending a proceeding, DHS did NOT need to keep it.

#ampFW: The Court relies on 8 USC § 1225(b)(2)(C) for the “may” proposition, while the dissent relies on 8 USC §1225(b)(2)(A) which uses “shall” for “shall be detained” awaiting an immigration proceeding. This statutory question is the key debate b/t the majority and the dissent.

#ampFW: To strengthen its argument, the Court noted that every Presidential admin has used this part of the statute in a discretionary way, Congressional funding is well short of what's needed to enforce it, and the foreign policy concerns caution against judicial intervention.

#ampFW: Next, the Court held DHS acted properly in response to the District Court and 5th Circuit finding the justification for canceling MPP inadequate.

In its new October memo explaining its cancellation, the Court held DHS corrected the record in the right way.

The Court distinguished this case from President Trump’s cancellation of #DACA. W/ DACA, the Court explained the Trump Admin had two options after lower courts found the reasons for ending the program inadequate.

It can rest on the original reasons w/ better explanations or…

it can take NEW agency action and look at the problems afresh, but the agency is NOT limited to its prior reasons. W/ #DACA DHS took step 1, rested on the original memo w/ better reasons. But when an agency takes step 1, it cannot use post-hoc (after the fact) rationalizations.

#ampFW: In the DACA case, the Court held DHS used post-hoc rationalizations in explaining its decision, which is NOT allowed.

In the case here, the Court held the Biden Admin took step 2, looked at MPP afresh w/ its October memo, and gave NEW reasons for its termination.

TX argued that the Oct. memo was a post-hoc rationalization, and Biden should lose like Trump w/ #DACA.

But the Court explained, post-hoc rationalizations are ok at step 2, but not 1 to ensure the agency stays true to its original reasons. Moreover, step 2 is more burdensome.

In sum, the Court held that the Biden Admin did NOT act illegally in rescinding MPP, and the INA does NOT require DHS to keep MPP. Justice Kavanaugh wrote a concurring opinion explaining a series of issues still exist when the case goes back to the 5th Circuit. This is NOT over.

#ampFW: Justice Alito's dissent was joined by Thomas & Gorsuch. He disagreed w/ the Court for several reasons. First, the INA gives DHS 3 options for aliens while they await removal/asylum proceedings: (1) detainment in US, (2) return to Mexico, (3) paroled on case by case basis

#ampFW: But here, the Court has CREATED a 4th option—an alien who cannot be detained due to a shortage of detention facilities but COULD be returned to Mexico can just be released.

In the dissent’s view, the INA is quite clear w/ these 3 options, there IS NO 4th.

Moreover, in a 2017 case Jennings v. Rodriguez, DHS argued the 3 options point. The Court accepted that analysis for its holding that the INA mandated detention of applicants for admission until certain proceedings had concluded. Whether DHS has the facilities necessary is moot.

#ampFW: To strengthen its textual argument that under 8 USC § 1225(b)(2)(A) DHS “shall” detain aliens, the dissent attacks the majority for reading 8 USC § 1225(b)(2)(C) (“may”) out of the broader INA context.

The Court’s interpretation destroys the entire purpose of the INA.

#ampFW: The dissent took a completely different view of DHS October memo canceling MPP. It recognized that the timing was to moot out (dismiss the case).

Moreover, the 5th Circuit acted correctly in concluding the Oct. memo did NOT constitute final agency action.

#ampFW: The dissent also showed the perverse incentives of the Court’s holding. Can an agency really appeal a district court loss, take a “new” action that reaches the SAME result, and then ask the court to dismiss the loss based on its new action? The 5th Circuit said NO WAY.

#ampFW: But under the Court’s reasoning, agencies might use this case to thwart judicial review. Justice Barrett's dissent was joined by Alito, Thomas, and Gorsuch arguing that the INA has several jurisdictional hurdles that might bar judicial relief in this case.

#ampFW: B/c of the thorny nature of jurisdictional questions, Justice Barrett believed that the lower courts should address this question before #SCOTUS had its say. She also attacked the majority for breezing past these difficult jurisdictional questions.