Last week was a bad one for President Joe Biden at the Supreme Court, which threw up not one, but two roadblocks to his agenda. The court turned up its nose at Biden’s attempt to end one of former President Donald Trump’s immigration policies and at Biden’s power to implement an eviction moratorium. One can read the two decisions as the court’s conservative majority sending mixed signals about the scope of executive authority, but the two decisions point to the deeper rot of a Congress that won’t legislate.
The two decisions point to the deeper rot of a Congress that won’t legislate.
Congress should have done its legislative duty by implementing immigration reform and extending the eviction moratorium. The vacuum created by Congress’ inaction has allowed presidents to step in and attempt to create (or end) programs that should only be created or ended legislatively. If Congress had done its job, there would be no executive orders regarding immigration or evictions for the court to bless or thwart.
Biden’s bad week at the court began with the court effectively preventing him from ending Trump’s so-called remain in Mexico policy. The policy requires that people seeking asylum wait in Mexico, instead of the U.S., to see if they are in fact granted asylum. The court’s decision was not a referendum on the need for, or the legality of, the program. Instead, in a half-page unsigned order, the court chastised the Biden administration for the way it tried to end “Remain in Mexico.” The order allows a lower court decision prohibiting the Biden administration from ending the policy to go into effect.
How does a group of unelected judges have the power to tell the president he can’t end his predecessor’s immigration policy? The answer, strangely enough, lies with the Deferred Action for Childhood Arrivals program. When Trump tried to end former President Barack Obama’s DACA program, the Supreme Court saidTrump could end it but didn’t go about it the right way. Specifically, the court ruled that Trump’s attempt to end DACA was arbitrary and capricious and therefore violated the federal Administrative Procedure Act. As I wrote after that decision, a thin majority of the court found the Trump administration “failed to give adequate reason for its decision to wind down DACA.”
What does the court’s DACA decision have to do with its “Remain in Mexico” order? The court concluded Biden’s administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” The court then cited its DACA decision.
How does a group of unelected judges have the power to tell the president he can’t end his predecessor’s immigration policy?
This means the court’s conservative majority suspects Biden’s effort to end Trump’s policy is arbitrary and capricious. And if you have a problem with that, or think the court is acting for political purposes, just see its decision telling Trump that his attempt to end DACA was arbitrary and capricious. Practically and legally, this means the next time a president implements a program like this, it may be harder for his (or her) successor to get rid of that program.
This is not the end of the road for the “Remain in Mexico” policy. A court of appeals will still weigh in on the Biden administration’s ability to end the program, and that decision could go back up to the Supreme Court.
After its order on the immigration policy, the court’s six-member conservative majority issued an eight-page per curium opinion striking down the Biden administration’s attempt to extend an eviction moratorium. The court concluded that the Centers for Disease Control and Prevention’s actions went beyond its statutory authority. Instead, the court concluded, it must be Congress, not an executive agency, that acts to implement an eviction moratorium.
What does Biden’s failed attempt (thanks to the Supreme Court) to end one of Trump’s immigration policies have to do with his failed attempt (again, thanks to the Supreme Court) to extend an eviction moratorium? The surface-level similarity is a Supreme Court unwilling to give the Biden administration wide berth to maneuver. But the deeper similarity is even more important. Both orders are about Congress’ failure to do its job. One can argue that Trump created the “Remain in Mexico” policy because Congress has left a gaping space when it comes to immigration and that Congress perhaps could have clarified the scope of asylum-seekers’ legal rights to be in the U.S. This would have either more clearly allowed or prohibited Trump’s policy. Think back to 2012 when Obama, thwarted by congressional inaction, issued an executive memorandum that essentially created DACA. DACA marks an important immigration policy, one best implemented via the legislative process. But Congress failed to act. And then, when Trump assumed office and told Congress he was going to end the program so it should go ahead and legislate, Congress instead did nothing. When the eviction moratorium was about to expire, and the Supreme Court sent signals that it would not allow any more extensions unless they came from Congress, Congress instead … you guessed it: failed to act. It’s easy to throw stones at the Supreme Court. And sometimes stones are absolutely deserved. But let’s take a moment to cast some much needed aspersions in the direction of another branch of our government: Congress. Its failure to pass immigration reform or protection for tenants planted the seeds for presidents to take matters into their own hands, appropriately or not. This is not how we are supposed to make policy.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
