Ending the Remain in Mexico Program: Judging the Boundaries of Executive Discretion

Prof. Peter Margulies, Lawfare, Jan. 20, 2022

"In an important decision on Dec. 13, 2021, in Texas v. Biden (Biden II), the U.S. Court of Appeals for the Fifth Circuit rejected the Biden administration’s latest bid to end the “Remain in Mexico” program (otherwise known as the Migrant Protection Protocols, or MPP). On Dec. 30, the U.S. Department of Justice responded with a petition for certiorari to the U.S. Supreme Court. As professors Cristina Rodriguez and Adam Cox noted on Dec. 21, the Fifth Circuit’s decision would preclude exercises of executive discretion that the Immigration and Nationality Act (INA) permits. However, both Rodriguez and Cox and the solicitor general’s certiorari petition go beyond that straightforward point, endorsing a more sweeping view of executive discretion that is also problematic. This post seeks to chart a course between these two extremes."