The Biden administration filed a petition for certiorari asking the Supreme Court to hear its argument after lower federal courts found that Biden unconstitutionally ended MPP following a lawsuit filed by Texas and Missouri.
MPP is a Trump-era immigration law that requires the federal government to send migrants back to Mexico while their asylum hearings are pending.
The Supreme Court on January 19 denied a motion from Texas seeking to extend the time to file a response by one month.
Government lawyers want to expedite this case. The Biden administration is hopeful that the case will be heard before the end of the Court's current term in June.
Immigration lawyer Aaron Reichlin-Melnick believes the Court will agree to hear the case. “My instinct says they are more likely than not to agree to hear the case this term,” he tweeted.
SCOTUS indicates that it's willing to go along with DOJ's timeframe to consider whether to hear the MPP case in mid-February. My instinct says they are more likely than not to agree to hear the case this term. https://t.co/5kbyvQp1Iq
— Aaron Reichlin-Melnick (@ReichlinMelnick) January 26, 2022
However, there is still the possibility that the Court will deny the Biden administration's request to hear the case. “Of course, the Court could still deny the petition. Or it could grant the petition and rule against the Biden Administration,” tweeted Steve Vladeck. “But it's a bit amusing that Texas thought no one would figure out that an extension would frustrate even the *opportunity* to resolve the case this Term.”
Of course, the Court could still deny the petition. Or it could grant the petition and rule against the Biden Administration. But it’s a bit amusing that Texas thought no one would figure out that an extension would frustrate even the *opportunity* to resolve the case this Term.
— Steve Vladeck (@steve_vladeck) January 25, 2022
If the case is heard, some experts believe the conservative court will likely rule against the Biden administration. “It might be better for Biden to withdraw the petition to the Supreme Court and concentrate instead on improving the MPP program,” said Nolan Rappaport.
In January 2021, President Joe Biden's Department of Homeland Security (DHS) suspended new enrollments in MPP. The administration later terminated the program on June 1. A district court ordered Biden to “enforce and implement MPP in good faith” after Texas and Missouri sued the administration.
The district court determined the MPP revocation violated the Administrative Procedure Act and mandatory detention provisions in federal law.
DHS issued a second revocation memorandum, but a circuit court of appeals affirmed the district court's decision to require Biden to implement MPP in good faith.
The case is Biden v. Texas, No. 21-954 in the Supreme Court of the United States.