The right-wing faction of the Supreme Court said in an unsigned order that the Biden administration must reinstate the previous administration’s cruel and unlawful Migrant Protection Protocols (MPP) policy, also known as Remain in Mexico. In refusing to block a lower court’s injunction, one immigration policy expert said the ruling Tuesday night makes it crystal clear the high court “will refuse to grant Biden the same kind of leeway that they routinely granted Trump.”

“And one of the worst parts of tonight’s decision is that unlike with DACA, where everyone agreed that the Trump administration could take another crack at ending DACA if they wanted to, the lower court order, in this case, blocks Biden from EVER ending Remain in Mexico,” American Immigration Council Policy Counsel Aaron Reichlin-Melnick tweeted.

How could that be possible, you ask? How could a president be blocked from lawfully ending an unlawful policy? The lower court decision, issued by a judge appointed by the previous administration, “effectively claimed that a 1996 law required the federal government to implement the Remain in Mexico policy permanently,” Ian Millhiser writes for Slate. “That policy didn’t even exist until 2019, so the upshot of Kacsmaryk’s opinion is that the government violated the law for nearly a quarter-century, and no one noticed.” 

Furthermore, Reichlin-Melnick previously noted that Judge Matthew Kacsmaryk’s order claimed the Biden administration couldn’t end Remain in Mexico until it has detention capacity for every single asylum-seeker, “something that has never occurred in modern history.”

“Kacsmaryk’s opinion, it should be noted, was dead wrong,” Millhiser continued. Yet the ruling forces the Biden administration to reopen talks with Mexico because Remain in Mexico can’t be reimplemented without the nation’s cooperation. Millhiser notes the lower court ruling says the Biden administration won’t be violating the order if it tries in “good faith” to reinstate Remain in Mexico. But that bar will be Kacsmaryk’s to decide. “And Judge Kacsmaryk now has the power to hold the Biden administration in contempt if he determines that they haven’t acted in good faith.”

“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,” Millhiser said. “With this order, Republican-appointed judges are claiming the power to direct U.S. foreign policy—and don’t even feel obligated to explain themselves.”

And they don’t even feel obligated to explain themselves when it’s a policy that stands to sends thousands back to danger. “In a February 2021 study, Human Rights First documented more than 1,500 cases of asylum seekers and migrants murdered, raped, tortured, violently assaulted, or kidnapped due to forcible return to Mexico under this policy,” Catholic Legal Immigration Network, Inc. said in a press release received by Daily Kos. “This included nearly 350 cases of children kidnapped or nearly kidnapped.”

Remain in Mexico was a humanitarian disaster. Because the previous administration always intended to inflict harm and block vulnerable people from their asylum rights, there’s simply no way for the Biden administration to reinstate it humanely. Nor should it. In numerous statements, immigrant and human rights advocates urged the Biden administration to redouble efforts to end the policy. According to CBS News, officials “were instructed to ‘reimplement’ the Trump-era Remain in Mexico border policy starting at 12:01 a.m. today.”

“The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation,” American Civil Liberties Union Immigrants’ Rights Project Director Omar Jadwat said. “What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system.” American Immigration Council Legal Director of Litigation Kate Melloy Goettel said the administration “can and must work to terminate the policy again immediately. Rather than turning away people fleeing harm, we should ensure people have a fair day in court.”

“In refusing to issue an emergency stay to the racist brainchild of Trump and Stephen Miller, the Supreme Court upheld white nationalism,” United We Dream Senior Advocacy Manager Juliana Macedo do Nascimento said in a statement received by Daily Kos. “In their entire four years in office, the goal of the Trump administration was to find as many ways to infringe on people’s legal right to seek asylum as possible.” The organization said the “administration must use their executive power to fully end the ‘Remain in Mexico’ program, and every other policy, including Title 42, which is rooted in white nationalism.”

“The lower courts got dozens of facts wrong, wildly misstated the law, and ordered the Executive to torpedo delicate foreign relations—and the Supreme Court, which until Biden took office blocked nearly all immigration injunctions when requested by the DOJ, just let them do it,” Reichlin-Melnick tweeted.