Secretary Johnson Submits Amicus Brief to Supreme Court on Foreign Policy Intrusion by Fifth Circuit

Paul, Weiss submitted an amicus brief to the Supreme Court in Biden v. Texas on behalf of Jeh Johnson, former Secretary of Homeland Security, and Roberta Jacobson, former Ambassador to Mexico. The brief sets forth amici’s view that foreign policy is the province of the executive branch and that the district court injunction at issue in the case, which compels the Biden administration to maintain a Trump-era policy, constituted an unwarranted intrusion into the conduct of foreign affairs and a “significant setback to U.S.-Mexico relations.”

The case before the Supreme Court, on certiorari from the Fifth Circuit, deals with a set of decisions by the U.S. District Court for the Northern District of Texas regarding the Biden administration’s suspension of the “Migrant Protection Protocols” (MPP)—a program that requires certain migrants seeking entry into the U.S. at the Mexican border to remain in Mexico during their U.S. immigration proceedings. The lower court blocked Secretary of Homeland Security Alejandro Mayorkas’ termination of MPP, necessitating an about-face in the new administration’s foreign policy approach with Mexico. The injunction, upheld by the Fifth Circuit, instead requires the United States to reimplement and maintain MPP in good faith until the United States has sufficient capacity to detain all migrants subject to mandatory detention without releasing any individuals because of a lack of detention resources.

In the brief, Secretary Johnson and Ambassador Jacobson draw on their extensive personal experience handling delicate negotiations with the government of Mexico to underscore the detrimental impact of the district court’s injunction on the executive’s foreign policy prerogatives. As the amici make clear, “[o]n matters of diplomacy, the United States Government must speak with one voice, declaring one policy at a time, and that voice belongs to the President.” If allowed to stand, the Fifth Circuit’s ruling may make the continued operation of MPP a permanent foreign policy priority, undermining the power of the executive to set foreign policy.

In addition to the Paul, Weiss brief, a number of other groups also submitted amicus briefs in support of the Biden administration’s position, including states and cities, former immigration officials, administrative law professors, immigrant-rights groups, Central American immigrants to the United States, and the Conference of Catholic Bishops. Arguments before the Court are set for April 26.

The Paul, Weiss team included ligation partner Geoffrey Chepiga, of counsel Moses Silverman, pro bono attorney Tanaz Moghadam and litigation associates Sarah Prostko, Miguel Zamora, Libby Norford and Jennifer Kim.