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Biden lays out his authority to end 'Remain-in-Mexico' policy

Biden lays out his authority to end 'Remain-in-Mexico' policy

  • A family at the Kino Border Initiative on July 28, 2021, in Nogales, Sonora.
    Paul Ingram/ A family at the Kino Border Initiative on July 28, 2021, in Nogales, Sonora.

WASHINGTON — Red states challenging the president’s authority over immigration policy made little headway at the Supreme Court in nearly two hours of oral arguments Tuesday on the Trump-era Migrant Protection Protocols.  

The policy better known as “Remain in Mexico” requires asylum seekers to stay in Mexico, instead of the U.S., while their claims are processed. Though aimed at curbing the “catch and release” of migrants into the U.S., immigration advocates claim it has created a humanitarian disaster at the border. President Joe Biden campaigned on the promise to unravel MPP and drew a lawsuit from Texas and Missouri when he followed through.

At oral arguments in Washington Tuesday morning, the justices appeared skeptical that states have authority to overrule decisions by the secretary of Homeland Security. 

“I think it’s a bit much for Texas to substitute itself for the secretary and say that you may want to terminate this but you have to keep it because it will reduce to a slight extent your violations of the law,” Chief Justice John Roberts told Texas Solicitor General Judd Stone II. 

Department of Homeland Security regulations allows the government to use its parole authority on a case-by-case basis if it meets a significant public benefit. Justices Brett Kavanaugh and Amy Coney Barrett seemed to think this regulation would give the government authority to keep migrants in the U.S. while their claims processed instead of sending them back to Mexico. 

“[Section] 1182 is the key because there’s this phrase ‘significant public benefit’ for paroling everyone in the United States,” Kavanaugh said. “And they say, consistent with past practice, that that language authorizes in a situation of limited capacity for parole to be into the United States.”

Barrett told Stone that Texas would lose if the government was right about that provision. 

“If the government is right about what significant public interest is and that prioritizing the beds based on who would be dangerous, who would be the worst aliens to permit into the United States … if they’re right about significant public interests, you lose,” Barrett said. 

Justice Elena Kagan focused on the foreign policy implications of forcing the administration to keep the policy. Kagan said Texas’ position would require the U.S. to be at the mercy of Mexico. 

“It doesn’t really seem like a garden-variety APA thing to basically tell the executive how to implement its foreign and immigration policy and that’s what this does,” the Obama appointee said, abbreviating the law known as the Administrative Procedure Act. “It puts the United States essentially at the mercy of Mexico.” 

The government claimed that federal courts are not supposed to have the power to overrule executive decisions as they did here. 

“The idea here that there is a single district court in Texas that is mandating those results, that is compelling the executive to engage in those ongoing negotiations, and is doing so under the constant threat of a contempt motion from Texas to supervise our good faith negotiations with Mexico shows that something has powerfully gone awry here,” U.S. Solicitor General Elizabeth Prelogar said. “This is not how our constitutional structure is supposed to operate and this is not the statute that Congress drafted.” 

The government did not escape the justices’ ire facing harsh questioning on whether its wish to get rid of the policy would interfere with Congress’ directives. The justices’ questions concerned provisions from the Immigration and Nationality Act, which says the agency “shall” detain immigrants during removal proceedings. But the act also says the Homeland Security secretary “may” return immigrants to their home countries while their case proceeds. Texas claims these provisions force the government to either detain migrants or send them back to Mexico. The government says “may” gives them the discretion to grant parole. 

A complication that the government relies on is that it’s not actually possible for them to detain every single migrant who seeks U.S. asylum. Prelogar told the justices that the government apprehended around 220,000 people at the border in March 2022 but only had 32,000 detention beds available. 

“It’s kind of self-evident and no one disputes here that there is a tremendous shortfall and DHS could not detain everyone who it’s encountering at the border,” Prelogar said. 

However, the justices wondered if the Homeland Security Department’s lack of funding to complete Congress’ directive was really a problem for them to solve. 

“You’re in a position where the facts have sort of overtaken the law,” Roberts said. “What are we supposed to do? It’s still our job to say what the law is and if we say what the law is and you tell us we can’t do anything about it, where do you think that leaves us?” 

President Biden suspended the Remain in Mexico program on his first day in office and his secretary of Homeland Security formally terminated the policy come June 2021. When Texas and Missouri sued to revive the policy, a Trump-appointed judge restored MPP. The ruling was held despite appeals for relief in the Fifth Circuit and the Supreme Court. The case landed back on the high court’s docket after an appeal failed in the Fifth Circuit

This is not the only Trump-era immigration policy the Biden administration has had to battle in court. The administration is currently facing suits over the repeal of Title 42, a pandemic-related health policy from Homeland Security.

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