Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
On the last day of its term, the Supreme Court ruled 5-4 that the Biden administration was within its authority to end the Trump-era “Remain in Mexico” policy.
In the Court’s Thursday ruling in Biden v. Texas, Chief Justice John Roberts led Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh for the majority. Justice Samuel Alito authored a dissent which was joined by Justices Clarence Thomas, Neil Gorsuch. Justice Amy Coney Barrett wrote a separate dissent which was joined by all three other dissenting justices — except for the first sentence.
The Migrant Protection Protocols (MPP) policy (known colloquially as “Remain in Mexico”) requires refugees and asylum-seekers to stay in Mexico indefinitely while their asylum applications are processed in the United States. While these individuals are in Mexico, they have no right to due process or counsel. As a result of SCOTUS’ ruling, the Biden administration is under no obligation to continue a program that it neither created nor supported.
Since the program’s inception, it has been the subject of constant litigation. The Supreme Court ruled in 2020 that MPP could stay in effect temporarily while a lawsuit challenging its validity proceeded. When President Joe Biden took office, however, his administration refused to defend the program, causing the case to be removed from the SCOTUS docket. Months later, Texas and Missouri sued the Biden administration for ending the program that had been put into place by the prior administration; the states argued that the federal government’s decision to end MPP had been “arbitrary and capricious” and that the program had been “enormously effective.”
As the Texas and Missouri case proceeded through the courts, the Department of Homeland Security (DHS) officially terminated the program in October 2021.
Homeland Security Secretary Alejandro Mayorkas said in court documents that “[e]fforts to implement MPP have played a particularly outsized role in diplomatic engagements with Mexico, diverting attention from more productive efforts to fight transnational criminal and smuggling networks and address the root causes of migration.”
The justices ruled in the case that was fast-tracked to land before them. Roberts’ 30-page majority opinion began with a finding that while the lower court lacked proper subject matter jurisdiction over the case, the Supreme Court has jurisdiction under federal law.
Turning to the merits of the lawsuit, Roberts said that a clause in federal law that says the Homeland Security Secretary “may” return a foreign national to their home country “plainly confers a discretionary authority.” Roberts noted that, “‘This Court has “repeatedly observed” that “the word ‘may’ clearly connotes discretion.'” (emphasis Roberts’). Therefore, Roberts said, the federal government can opt to return migrants to Mexico, but is not required to do so.
In a footnote, Roberts acknowledged an argument raised by the dissenting justices. Failure to comply with a statutory mandate that something “shall” be done would indeed be a violation of the law, Roberts said.
“But the question before us is not whether the Government is violating the immigration laws generally,” the chief justice continued. “The question is whether the INA requires the government to continue implementing MPP.”
“And the statutory text clearly answers that question in the negative,” he added.
Roberts characterized the majority’s decision as one that prudently avoided improper intrusion into diplomatic relations. He said, “[T]he Court has taken care to avoid ‘the danger of unwarranted judicial interference in the conduct of foreign policy,’ and declined to ‘run interference in [the] delicate field of international relations’ without ‘the affirmative intention of the Congress clearly expressed.'”
Roberts also had words for the Fifth Circuit — a federal appellate bench heavy with Donald Trump appointees. Roberts said that the Fifth Circuit “imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico,” by ruling that the federal government had to continue MPP against its will. Roberts quoted Mayorkas’ statement about MPP playing an “outsized role” in diplomatic relations with Mexico, and said that Congress did not intend to “force the Executive to the bargaining table with Mexico, over a policy that both countries wish to terminate.”
The Roberts majority also closed a procedural loop in the case and ruled that two DHS memos constituted final agency action under the Administrative Procedure Act.
The Court also addressed an interesting argument that had been raised by Texas: that DHS had proceeded in bad faith because Secretary Mayorkas entered office already hoping to terminate MPP. Roberts wrote that any preference for terminating MPP, “like any other feature of an administration’s policy agenda,” should not be a basis for invalidating the agency’s ultimate action. Roberts quoted from a prior William Rehnquist decision that “It is hardly improper for an agency head to come into office with policy preferences and ideas . . . and work with staff attorneys to substantiate the legal basis fora preferred policy.”
Finally, the majority specifically noted the availability of parole as an option for asylum-seekers. The fact that DHS can issue parole (albeit on a case-by-case basis) supports the overall finding that DHS is not required to keep MPP in place over its objection.
The majority’s ruling is not, however, the end of litigation over MPP. The Court ruled that the Biden administration was within its rights to end the program, but remanded it for further proceedings to assess the legality of DHS’ current policy.
Justice Kavanaugh, who voted with the majority, also opted to pen a concurrence. In it, Kavanaugh elaborated on what he called “Administrative Law 101.”
Kavanaugh wrote that when there is insufficient detention capacity, parole and return-to-Mexico are both options under immigration law.
“[E]very President since the late 1990s has employed the parole option, and President Trump also employed the return-to-Mexico option for a relatively small group of noncitizens,” Kavanaugh wrote. The executive, said Kavanaugh, has different ability to exercise his discretion on the matter, and courts “must be deferential to the President’s Article II foreign-policy judgment.”
Kavanaugh also opted to make a final comment on the subject of U.S.-Mexico relations:
One final note: The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration
proceedings. But this Court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems.
Justice Alito began his dissent with a question about immigration:
In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border. When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?
Alito then answered his own question: “Congress has provided a clear answer to that question, and the answer is no.”
Alito next moved on to accusing the majority of “look[ing] the other way,” on the law as they allow “huge numbers of aliens” to enter illegally from Mexico and be released into this country while they await removal hearings for which they will not show up. Alito denounced the majority’s decision as “seriously flawed,” and rejected the Court’s reading of the applicable statute to infer discretion on the part of DHS.
Alito further rejected the Biden administration’s claim that without MPP, evaluations of individual immigrants can be made on a case-by-base basis. “Even the rudimentary step of verifying that an alien does not have a criminal record is not performed in every case,” said Alito. The dissent offered several analogous examples of statutory usage of “shall” versus “may” to support its position that DSH must return migrants to Mexico while they await hearings.
Justice Barrett authored her own dissenting opinion, which was joined by Thomas, Alito, and Gorsuch — with the exception of her rather deferential opening sentence: “I agree with the Court’s analysis of the merits—but not with its decision to reach them.”
In her dissent (among the first issued by Barrett as a justice), Barrett focused on procedure, and made no mention of U.S.-Mexico relations or DHS’ ability to manage illegal immigration. Rather, she confined her remarks to an analysis of 8 U. S. C. §1252(f )(1), a provision of the Immigration and Nationality Act.
Specifically, Barrett attacked the Court for “plow[ing] ahead to break new jurisdictional ground,” by finding that the lower court had subject matter jurisdiction to hear the dispute but not remedial authority to resolve the case. Barrett said she “would tread more carefully,” and instead “let the lower courts be the first to address the substantial antecedent questions” posed under §1252(f )(1).
[image via Fred Schilling, Collection of the Supreme Court of the United States]
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