The U.S. 5th Circuit has rejected President Biden’s latest attempt to eradicate President Trump’s “Remain in Mexico” border policy. The court upheld a lower court ruling that the Department of Homeland Security(DHS) improperly removed the Trump-era Migrant Protection Protocol, forcing Biden to reinstate the policy he’s worked since last November to end.
The Hill reports:
The ruling by three Republican-appointed judges is the latest in a fight in which GOP-controlled states have sued the Biden administration to continue a border control policy they say is a “common sense” approach to implementing asylum law.
“DHS claims the power to implement a massive policy reversal — affecting billions of dollars and countless people — simply by typing out a new Word document and posting it on the internet. No input from Congress, no ordinary rulemaking procedures, and no judicial review,” wrote Oldham.
“We address and reject each of the Government’s reviewability arguments and determine that DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum,” he added.
Judge Oldham rejected DHS’s argument that the lower court case was moot and slammed the Department for claiming its later memo could moot the case.
“Never mind that a case is moot only when the controversy between the parties is dead and gone, and the controversy between these parties is very much not dead and not gone. Never mind that the new memoranda simply reaffirmed the Termination Decision that the States had been challenging all along. And never mind that the Government’s theory of mootness would allow an administrative agency to permanently avoid judicial review by issuing an endless litany of new memos to ‘moot’ every adverse judicial ruling,” wrote Oldham.