Courthouse Steps Decision: Biden v. Texas

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On June 30, 2022, the Supreme Court decided Biden v. Texas.

In a 5-4 decision, the Court ruled that the Biden administration can end the Migrant Protection Protocols (MPP), an immigration enforcement program put in place under the Trump administration.

Under MPP (colloquially known as "Remain in Mexico"), many individuals seeking asylum in the United States after entering via the southern border were sent back to Mexico to await their court dates. Soon after taking office President Biden sought to end the program, but the administration was ordered to continue enforcing the Protocols by a federal district court and the Fifth Circuit Court of Appeals.

Please join Professor Ilya Somin as he breaks down the ruling and its implications for immigration policy and administrative law.


Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University


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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at



Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin, and I’m Associate Director of Practice Groups at The Federalist Society. Today, we’re excited to host a Courthouse Steps Decision discussion on Biden v. Texas, featuring Professor Ilya Somin.


      Ilya Somin is Professor of Law at George Mason University’s Antonin Scalia Law School, where his work focuses on constitutional law, property law, democratic theory, federalism, and migration rights. You can visit to view his full bio.


      After Professor Somin’s presentation, we’ll go to audience Q&A, so please enter any questions into the Q&A function at the bottom of your Zoom window. Finally, I’ll note that, as always, all expressions of opinion on today’s program are those of the guest speaker joining us. With that, Professor Somin, the virtual floor is yours.


Prof. Ilya Somin:  Thank you, and as Jack mentioned, I’m here to talk about Biden v. Texas, which I think is better known as the “Remain in Mexico” decision from yesterday. In a normal Supreme Court term, this might well be regarded as one of the more significant cases. In this term, it may be, kind of, getting lost among the crowd of other cases that address more hot-button types of issues like abortion, guns, religion, and so on. Nonetheless, it is at least a fairly significant decision, and I’m going to talk about its significance both in terms of the specific policy of facts and in terms of broader impacts on presidential power over immigration.


      So just briefly to explain what this case is about: it is about the so-called migrant protection protocol adopted by the Trump administration in 2019, which forced large numbers of non-Mexican immigrants—or migrants arriving in the US across the southern border—to stay in Mexico to have their asylum and also their removal cases heard, as opposed to previous procedure where most of them would remain in the United States to do this. As a result of being forced to stay in Mexico, they often ended up there for many months or even longer because the adjudication of these cases is extremely slow. Meanwhile, they were exposed to a great deal of violence and coercion. Human rights groups estimate that some 1,500 cases or more occurred over the period that the program was in operation—cases of violence, rape, assault, and so on.


      So when Biden came into power in January of 2021, he had previously promised to do away with the “Remain in Mexico” policy. In June of 2021, his Department of Homeland Security, in fact, did so. However, a district court, in response to lawsuits by conservative states, struck it down on the theory that they hadn’t given sufficient reasons as required under the Administrative Procedure Act. The litigation continued in the appellate court. Meanwhile, in October of 2021, the Biden administration, having previously withdrawn their June 2021 memo repealing the policy, they put forward a more extensive memo with more detailed analysis of various justifications and reasons, and this is the one that ultimately ended up before the Supreme Court.


      So I’m going to first start talking about the specific statutory issues raised by this case under the Immigration Nationality Act. Then I’ll talk about the Administrative Procedure Act issue, and I will talk about, finally, the broader implications here for presidential power. And I’ll also talk a little bit about the practical effect of the decision.


      At the risk of ruining the suspense, I will note that by a 5-4 decision, the Supreme Court ruled in favor of the Biden administration here, and this may have been a 6-3 decision if you count just where the justices stood on the merits because Justice Barrett said that she would have preferred not to take the case on procedural grounds, but having considered the merits, she would have voted with the majority if she had thought it was appropriate to do so. So Biden probably will be able to put an end to the “Remain in Mexico” policy, though, as I’ll discuss a little bit later, there’s one additional issue that still needs to be litigated below.


      So the statutory question here is under Section 1225 of the Immigration and Nationality Act. And on the one hand, there’s a provision which says, “In case of an alien who is arriving on land”—including, of course, the Mexican border—"from territory contiguous to the United States, the Attorney General may return the alien to that territory pending relevant proceedings.” And notice the word “may” here. This suggests that the Attorney General doesn’t have to return the alien. He can if he wants to, but he doesn’t have to.


      On the other hand, Section 1225 also has a provision which says, “An alien seeking admission, if they’re not clearly and beyond a doubt entitled to be admitted, the alien has to be detained for a proceeding under Section 1229 of the same Act. This seemed to suggest that, at least in many cases, detention is mandatory. And the plaintiff suing in this case—conservative states led by Texas and Missouri—they say that if the alien cannot be detained or the administration chooses not to detain him, then it becomes mandatory for them to expel the person outside the United States to Mexico or perhaps to some other country.


      The majority opinion of the Supreme Court—authored by Chief Justice Roberts and joined by two conservative justices and all three liberal ones and also, on this point, Barrett also agreed—they essentially say that even if the mandatory detention provision is violated, it doesn’t follow that the only remedy for this violation, or the required remedy, is to expel the person, that the mandatory detention doesn’t convert the “may” in the previous section of the INA into a must. And they also point out—and I think the dissent recognized this as well—that it has never actually been possible to fully comply with the mandatory detention provision because there is way more migrants than the US government has detention facilities for. This has always been true. It was true under Trump; it was true under Biden. It’s true under every president who has served since this provision was first enacted, now more than 25 years ago.


      In addition, the majority points to Section 1182 of the same Act, which creates the option of a parole into the United States in a “case-by-case basis” for people who would otherwise be inadmissible.” And what the Biden administration has essentially done for many of the people who might otherwise be detained is parole them under Section 1182. The dissent by Justice Alito does not deny that there is this option of parole. They just say that case-by-case means that there’d have to be a very detailed case-by-case adjudication and that the Biden administration has violated this when they let in 27,000 people and only very modest inquiry into each individual—then that wasn’t really case-by-case.


      To my mind, the majority has the better argument on this particular point because unless case-by-case adjudication is going to be completely arbitrary, then it has to be guided by some sort of rules. And how much investigation you do into each case to determine whether the rules have been followed, I think, is up to executive discretion unless the law says otherwise, which it does not. And realistically, I’m not sure there is a fundamental difference between case-by-case decision making and general rule-based decision making unless you’re willing to say the case-by-case decision making has to be extremely detailed or, alternatively, if you’re willing to say that to be completely arbitrary. Otherwise, I think, so long as there is some minimal effort to ensure that the particular individuals fit under the rules that have been set down, I think that is sufficient.


      I also think the majority is right on this question of the trade-off between the mandatory detention and the “may send a person back abroad.” Even if the mandatory detention provision has been violated—which it is all the time by every administration—it doesn’t follow that the “may” in the other provision of Section 1225 becomes a must. In effect, what Congress has done with the Mandatory Detention Provision is that they’ve set down a rule which is not possible to obey because there’s not the resources to obey it and never has been.


      And even Justice Alito, in his dissent, he admits that Congress can’t compel the executive or, at least, courts can’t compel the executive to do the impossible. I would add that if this provision said, “Well, the executive must send the people to the moon while they wait,” and it turns out that it’s impossible to send them to the moon, it doesn't follow, therefore, that the only other option—or that the remedy for that—is to deport them to Mexico, that, essentially, Congress has made here a command that is impossible, but the remedy is not to change the wording of this provision of the statute.


      So that’s the statutory issues here. I would add, merely, that in another part of the majority opinion, Chief Justice Roberts says that it’s particularly important not to make this mandatory expulsion because mandatory expulsion to Mexico—forcing people to wait there—it now requires the cooperation of the Mexican government. And if Mexico doesn’t want to cooperate, which sometimes it does not, that creates problems of foreign relations. He says that the executive should get special discretion with respect to foreign relations. I have some sympathy with this, but I also think that Congress has the power to override discretion in this particular area. So if Congress really did make a clear command that the people -- that the only other option is to expel people, then that, I think, would override that. But I think that is not what has occurred here.


      So in addition to the issues under the Immigration and Nationality Act, there are also issues under the Administrative Procedure Act where the Fifth Circuit and the lower court had said that the original June 1 memo issued by the Department of Homeland Security didn’t analyze the issues thoroughly enough. This is, actually, in some ways similar to a Supreme Court’s decision a couple years ago where they ruled against the Trump administration’s efforts to end the DACA program, saying they hadn’t sufficiently considered the issue. But in that case, as in this one, the administration tried to fix the problem by adding some more analysis later. In the DACA case, the Supreme Court said that the later analysis was not itself a final agency action that displaced the previous one. It was just a post hoc rationalization.


      Here, by contrast, the Biden administration, actually, had essentially canned the June 1 memo, which was considered inadequate. They started all over again from square one and produced a whole new memo, which does examine things in greater detail. And therefore, Roberts—who, of course, also wrote the DACA opinion—here, he says this is a different case. This is a whole new agency action, not just an attempt to rationalize the previous one. He also rules -- I don’t have time to go into this in detail, but he also rules that in this case—unlike in the census case in 2019, where the Court ruled against the Trump administration’s efforts to analyze, or to ask questions about, legal status in the census—here, there wasn’t dishonesty about the real rationale for the action, and that makes things different. There wasn’t bad faith.


      However, there is one issue under the Administrative Procedure Act which remains unresolved because it wasn’t reviewed by the Court, and that is the question of whether the Biden administration’s actions in ending “Remain in Mexico” were “arbitrary, capricious, or an abuse of discretion.” And that’s remanded to lower court. I think, under this opinion, it’s somewhat unlikely that the plaintiff states could win under this because if there’s not bad faith, if the October memo is thorough, then that should be enough to knock the “arbitrary/capricious.” But the Supreme Court did leave this issue unresolved, so we don’t yet know what’s going to happen on the lower court.


      There’s a final issue, which is procedural in nature and which Justice Barrett based her dissent on. She was also joined by three other dissenters on this point, but the three others also disagreed on a majority of other things, and that is that under Section 1252 of the INA, there’s a provision which says, “No court other than the Supreme Court shall have jurisdiction or authority to enjoin or restrain the operation of various provisions of the INA except as applied to an individual alien against whom proceedings have been initiated.” The lower court had issued an injunction against the Biden administration’s termination of the “Remain in Mexico” policy, and if Section 1252 applies, says Justice Barrett, that means that the lower court had no power to issue that injunction, and the Supreme Court should have just dismissed the case on that basis and not reviewed on the merits the question of whether the Biden administration had the authority to do this.


      And while Barrett thinks that they did, actually, have the authority to do it, whereas the other three dissenters thinks that they did not, all four of them agree that this issue should not even have been reached—that the lower court’s ruling should have just been overturned on the basis that there was just no authority to do an injunction here. And notice that under this approach, it seems like the Biden administration would still be able to go forward with a termination of the “Remain in Mexico” program or, at least, no federal court could stop them. 


      So on that point, it seems like, in terms of practical implications, there may not be as much of a gap between the dissenters and the majority as there seemed to the dissenters -- while three of the dissenters do think that what the Biden administration did was illegal, they also think that a lower court can’t issue an injunction against it. Maybe the Supreme Court can issue an injunction, and that is what Chief Justice Roberts argued—the Supreme Court has jurisdiction over these issues. But Barrett suggests that if the lower court cannot issue an injunction, then the lower court can’t even hear the case. And if the lower court can’t even hear the case, then it can’t get to the Supreme Court.


      I think this is, actually, a key weakness in Barrett’s argument. It seems kind of silly to say that the Supreme Court has the power to issue injunctions, but the case can never even get to the Supreme Court. That seems contradictory.


      Now, to be sure, if an injunction can’t be issued, there theoretically could be other remedies that a lower court could put in here, but it’s not easy to see exactly what they would be. I presume this conservative Supreme Court would not allow money damages in this sort of a case. Maybe you could have a declaratory judgment—that is, a district court could say, “This is illegal, but we’re not issuing any injunction or order to change things in any way.” And, I guess you could say an honest administration would obey the declaratory judgment even if it didn’t really have to. But it’s easy to imagine them saying, “Well, this is just a declaratory judgment, doesn’t require us to, actually, do anything, and therefore, we’re just going to keep on doing what we’re doing.” I think that’s certainly what Donald Trump would do if he were faced with a situation like this, and maybe Biden would do the same.


      So, while the majority and the dissenters disagree on some things pretty vehemently, it seems like if you accept the dissent’s procedural stance then, ironically, the Court still couldn’t do anything about this even if the Biden administration had acted illegally, which I think is kind of strange. But that’s what it seems like to me. I should emphasize, however, that I’m not a remedies expert, and this analysis is based on my reading the decision as of late last night, so it's possible that I’m missing some remedies-related point. If so, there may be members of the audience who know more about remedies than I do, and I welcome their correction. I really do. I have to acknowledge the limits of my expertise here.


      So what are the implications of this? The immediate policy implications, I think, are fairly clear—that is that now Biden can succeed in terminating this program, most likely. And so, there will no longer be thousands of people who are subject to it. At its peak, there were some 70,000 people detained under “Remain in Mexico” in Mexico, and as I said before, they were subject, in some cases, to horrific violence and assault. So to me, that’s a good thing that that won’t happen anymore.


      By the time the Biden administration wound down the program, there were only about 13,000 people in it, but if they were forced to restart it, it would be the case that probably that number could grow massively. But it is also the case that Biden or a future president under this reasoning could restart the program at almost any time he or she wanted. So a future Republican president could certainly restart it, and there’s a good chance they would if they win the 2024 election. Or Biden, himself, could restart it if he chose, if he thought it was politically advantageous for him to do so. And he has, in some cases, continued or even started harsh immigration policies at various times when he has thought it beneficial for himself.


      The reason, as I mentioned before, is still the possibility that Biden’s action could be invalidated by a district judge based on Section 706 of the Administrative Procedure Act. I don’t think that would be the correct decision, and it seems like the Court has cautioned against that, but it’s not precluded, so there will be more litigation over this.


      What are some of the broader implications of this beyond this particular policy? Well, one is, I think, this continues the Roberts’ court pattern of being in favor of very broad presidential discretion in immigration policy. They did that in the travel-ban decision. They did that in the Habeas Corpus decision two years ago. The one exception was the Regents decision relating to DACA, but there, it seems like that was just an exception because of exceptionally poor administrative law work by the Biden administration -- I’m sorry, by the Trump administration, as I can discuss in questions if people are interested. I think the Supreme Court made clear that with somewhat better lawyering, either Trump or a future administration could put an end to DACA if they really wanted to.


      I do think this very deferential stand to executive discretion is at odds with some of the other doctrines that the Court has been pushing, including the nondelegation doctrine, which limits delegations to the executive here. If you combine this decision with the Travel Ban decision, it seems like the president has, well, not quite unlimited but almost unlimited discretion to prevent the entry of almost any migrant who isn’t already a citizen or a permanent resident. And if they don’t fully prevent it, they have near total discretion—at least with people crossing on land—to determine whether those people should be allowed to have their cases considered in the US or whether they should have to wait in Mexico or somewhere else.


      If they’re in the US, on top of that, the executive has near total discretion to determine whether they should get parole or not or whether they should be put in detention. Though the putting in detention option is constrained by the reality that there’s only a limited number of detention facilities. So there’s very little here that the executive cannot do when it comes to migrants. And if you are concerned about non-delegation principles, then this should bother you. It certainly bothers me because I do believe that non-delegation is a significant issue.


      Finally, there is the ongoing litigation in the lower courts going on right now over whether the Biden administration can terminate the so-called Title 42 expulsions begun by Trump and continued by Biden using the CDC’s public health authority. And I think, tentatively at least, that this decision bodes well for the resolution of the case about whether Biden can terminate this if he wants to. A lower court or a district court has enjoined this as a violation of the Administrative Procedure Act. I think there is a good chance that if this reaches a higher court after this decision, that Biden will be able to terminate Title 42.


      Elsewhere, I have argued that Trump and Biden actually acted illegally when they did the Title 42 expulsions in the first place because either the relevant statute, it doesn’t authorize it, or it’s a violation of non-delegation and also the major questions doctrine. We can talk about that in the questions. I also have an article in the NYU Journal of Law and Liberty which goes over this in much greater detail.


      But I think, if you put together the Roberts Court’s jurisprudence in immigration, with rare exceptions, the impact of that jurisprudence is that the president can do almost anything he wants. However, I will note that there could be some limitations based on non-delegation and major questions. This Court, and really almost any court, has not seriously considered what the implications of those doctrines for immigration are. There has been some lower court discussion of this, including a partial invalidation of one of Trump’s COVID-era visa limitation policies, but the Supreme Court has not opined on it.


      So in one sense, this decision is a victory for people who want more favorable and less cruel treatment of immigrants, but it’s also a victory for people who like broad presidential power over immigration. And on that note, I will conclude, but I very much look forward to taking your questions. Thank you.


Jack Derwin:  Thanks so much, Professor Somin. And as you mentioned, now we’ll turn to audience Q&A. Again, to our audience, if you’d like to submit a question, please just use the Q&A box at the bottom right of your Zoom window. And we do have a couple in here already, so I can kick this off with one.


      Historically, a new presidential administration has had broad discretion to reverse a prior administration’s policy, so long as they explain why. That seemed to change in the Trump administration, where the Court seemed to be eager to take a hard look at policy reversals. Were cases like DACA an outlier, or is this case an outlier in a trend towards heavier scrutiny of policy reversals?


Prof. Ilya Somin:  So I think, as I mentioned before, that in the DACA case, the Trump administration got into trouble because they did just a really terrible job of Administrative Procedure Act lawyering, which I think arose in large part because, for political reasons, they didn’t want to admit that they just didn’t like DACA and wanted to get rid of it for policy reasons because that would have meant openly saying, “I think a whole bunch of people who were brought into the United States as children should be deported even though they, the children, didn’t do anything wrong.” So instead, they put forward some badly flawed rationales of various kinds that were both pre-textual and didn’t consider some of the key issues that had to be considered.


      And if you read Chief Justice Roberts’ opinion in that case, he makes that clear. But he also, in effect, outlines a road map by which an administration could get rid of  DACA if they wanted to, which is they could, in fact, just come out and say, “We think DACA is a bad policy.” And they could consider the issue of the impact on the people who came in as children, and they can, in effect, say, “Well, this is not my view. I think it would be terrible to deport those people.” But they—not me—could say that "we think while it might be unfortunate for those people to deport them, it would be in the interest of deterring future illegal immigration and, maybe, some other kinds of interests, and therefore, that’s why we’re doing it.”


      And, of course, the Trump administration did, in fact, manage to put in a wide range of new policies—new and much harsher policies in respect to a huge range of immigration issues—where courts, including the Supreme Court, often upheld them. I noted the Travel Ban case before. There was also this very policy—the Migrant Protection Protocol—also the Title 42 expulsions. If you include all of the Trump administration’s policies, they actually made the United States more closed to immigration than at any time ever in its history throughout the previous 200 years.


      So while the Trump administration did suffer some defeats in court, it can’t really be said that the courts turned out to be a really big obstacle to their doing what they wanted to do. The courts, maybe, stopped some of the most dubious five or ten percent of what the Trump administration wanted to do in immigration policy. And even that part, in the DACA case, they outlined what’s, in fact, a kind of road map that could be used to effect the change if the administration wanted to.


Jack Derwin:  So you did note that you are not a remedies expert, but we have a question here regarding remedies if you’re willing to take a stab. “I’m curious about the legal remedies regarding international sovereignty, international terrorist threats, and threats to US national security that might be unique to this case, given the actual context.”


Prof. Ilya Somin:  So the executive certainly has the power to detain and prosecute people where there’s evidence that they’re engaged in not only terrorism but other kinds of criminal activity. However, here, as elsewhere, there is a wide range of discretion that the executive has. So even in the case of a terrorist, in principle the executive say, “Well, this is not an important enough terrorist. I don’t want to prosecute him for whatever reason. Or this person is a US intelligence [inaudible 28:12] or something, I don’t prosecute him.” So there’s a whole bunch of separate statutes which deal specifically with terrorism prosecutions. So the bottom line, in this case, is, at least from the majority’s perspective but to a considerable degree even  from the dissent’s perspective, is that the executive has a very wide range of discretion.


      I personally think giving them this range of discretion is a problem under the major questions doctrine and under the nondelegation doctrine, but neither of those things even show up in this case because the plaintiffs didn’t argue it. And I think one reason why they didn’t argue it is because these are conservative red states. They want there to be broad presidential discretion to expel migrants or keep them out, so they want to limit presidential discretion in some way to do things they don’t like, like ending the MPP program. But they don’t want to do it in a way, like, with non-delegation, which would also constrain presidents they do like. And, obviously, that kind of have-our-cake-and-eat-it issue is a problem on both left and right—that, where possible, they try to do litigation postures where you constrain the president you don’t like, but you empower the one that you do.


Jack Derwin:  I think we have time for one more question here. “If a lower court issues some remedy—say, a declaratory judgment in the state’s favor—and the states win, what is there to appeal, and why would the federal government ever appeal if only the Supreme Court can issue an injunction? What’s the practical remedy under the INA, if there is one?”


Prof. Ilya Somin:  So these problems would arise if Justice Barrett’s position had been adopted, but her position was not adopted. If the lower court issues a remedy other than an -- because under Justice Barrett’s position, it would seem like this issue could never be truly litigated because the lower court would not even have the power to take the case. But under the majority’s approach, the lower court can take the case; they’re just limited in their remedies. Obviously, if the federal government lost the case and a remedies was issued, the federal government has the option of not trying to appeal because they might say, “The loss is not that bad, and we might get a worse loss if we get to the Supreme Court.” But the federal government always had that discretion about whether they want to appeal a case that they lost or not.


      As I said before, I do think it’s kind of paradoxical that under the position that the dissent has, it seems like their position is that what the Biden administration did was illegal but also that there may not be any kind of remedy that any level of court can issue against it or, at least, any kind of remedy likely to be effective, unless they’re willing to say that money damages are available, which I think these conservative Supreme Court justices are very unlikely to say that there could be money damage in a case like this. But what do I know? Maybe they would think of some way that it could be possible.


Jack Derwin:  Well, thank you so much, Professor. I think we’ll wrap up there. Really appreciate you taking the time to join us today.


Prof. Ilya Somin:  Thank you so much for having me.


Jack Derwin:  And thank you to our audience for tuning in to today’s virtual event. You can check out our website,, or follow us on all the major social media platforms @fedsoc to stay up to date. Our next Courthouse Steps Decision webinar will be on Oklahoma v. Castro-Huerta at 1 p.m. Eastern, next Tuesday, July 5. With that, we are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at