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As SCOTUS Considers Fate of Trump-Era ‘Remain in Mexico’ Policy, One Justice Says Texas Would Leave U.S. Immigration Decisions ‘in the Hands of Mexico’

The nine Supreme Court justices pose for a group picture in 2021

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.

The Biden administration faced off against Texas and Missouri on Tuesday, going yet another round before the justices over the Trump-era “Remain in Mexico” policy. The case, Texas v. Biden, is the latest battle over whether the Biden administration must enforce the harsh immigration policy that it neither created nor supports.

Known formally as Migrant Protection Protocols (MPP), the policy requires refugees and asylum-seekers to remain in Mexico indefinitely while their asylum applications are processed in the United States. During the time the individuals are forced to stay in Mexico, they are deprived due process and access to counsel. Immigration and human-rights advocates have long argued that the policy exacerbates the already dire humanitarian crisis at the U.S.-Mexico border. Supporters argue that, without the policy, enormous numbers of noncitizens will gain entry to the U.S. predicated on meritless asylum claims.

Since the policy’s inception in 2018, it has been the subject of ongoing litigation. When the policy was first challenged, SCOTUS ruled in 2020 that it could stay in effect temporarily while the case proceeded. However, in February 2021, shortly after President Joe Biden took office and refused to defend the program, SCOTUS removed the case from its docket. The following April, Texas and Missouri sued the Biden administration for its “arbitrary and capricious” decision to end the “enormously effective” program. That is the case currently before the justices.

The district court ruled in favor of Texas and Missouri and ordered the federal government to reinstate the policy. After both the U.S. Court of Appeals for the 5th Circuit and the Supreme Court refused to block the district court’s order while the litigation was pending, the Biden administration was bound to reinstate MPP. Meanwhile, the Department of Homeland Security (DHS) terminated the program in October 2021.

The case was then fast-tracked to SCOTUS to decide whether DHS had the authority to terminate MPP, or whether the Biden Administration should be forced to implement a program with which is fiercely disagrees. Texas and Missouri continue to argue that the Biden administration’s refusal to enforce MPP violates its duty under federal immigration law. The justices are not being asked to decide the legality or the wisdom of MPP generally, but rather, whether the federal government was within its authority to discontinue the program.

Under the statute applicable to the case, DHS “may” return asylum seekers to Mexico when it cannot detain them in the U.S. Texas and Missouri repeatedly argued to the justices that although DHS has some authority to choose among the options of detention, bond, parole, or MPP, ending MPP altogether is not one of the choices available to the agency.

United States Solicitor General Elizabeth Prelogar argued on behalf of the Department of Justice, while Texas Solicitor General Judd Stone argued for the state litigants. During the arguments, counsel and the justices shifted back and forth from questions of statutory interpretation and executive authority to the practical effects of discontinuing MPP.

Several justices asked Prelogar to elaborate on the practicalities and logistics of the vast numbers of asylum seekers must await processing. Prelogar explained in response to one of Justice Sonia Sotomayor’s questions that non-citizens are processed on a case-by-case basis, meaning that individuals are interviewed, biometric data is recorded, and watchlist screenings are conducted.

Justice Brett Kavanaugh gave repeated indication during oral arguments that he believes ending MPP would run contrary to Congressional intent. Kavanaugh asked Prelogar, “is there any indication… that anyone in Congress expected that if there was not sufficient detention capacity that hundreds of thousands of people would be just paroled into the United States without being lawfully admitted?”

Justice Samuel Alito argued that MPP is an option that must be used when there is insufficient capacity to detain all affected individuals.

Chief Justice John Roberts was also concerned about the federal government’s lack of capacity to detain all asylum seekers pending resolution of their applications. “There is no limit to the number of people you can release into the United States, right?” Roberts pointed out.

Prelogar responded that the limited detention capacity in the U.S. operates as an “inherent limit” and Roberts agreed, saying “everybody knows there aren’t nearly enough beds to take care of the problem.”

Prelogar argued that, “contiguous territory return cannot be the solution here,” reminding the justices that DHS is constrained by Mexico’s limited consent.

Justice Amy Coney Barrett joined the conversation to raise the question of “significant public benefit.” Under the statute, a finding of “significant public benefit” is necessary to support the grant of parole. Barrett asked Prelogar whether the government considers any “significant public benefit” in not releasing into Mexico. Prelogar answered that the question of whether of parole versus placement into MPP can be considered a “significant public benefit” is a question for the DHS secretary and not individual immigration officers.

Prelogar lectured Barrett at length about the wisdom of DHS Secretary Alejandro Mayorkas‘ decision to discontinue MPP. “It’s not as though return to Mexico is costless,” Prelogar said, “It involves an enormous investment of our diplomatic resources and our engagement with that bilateral negotiation.”  She continued, “The secretary is well justified in thinking that in light of the tremendous cost that he identified with the program and in light of his determination that it actually detracted from other strategies and programs he thought would be more effective in stemming the tide of irregular migration, that he was well justified in making that policy determination.”

When Texas Solicitor General Judd Stone took the podium, Justice Sotomayor posed a question of historical context. She raised the government’s long history of releasing people on parole as evidence of Congress’ intent. “When Congress knows that something is happening and it responds or fails to respond, it tells us something about its intent,” she argued. Sotomayor continued, “At no time in American history has any administration followed [Texas’] interpretation’ and attempted to detain every single illegal immigrant.”

Justice Elena Kagan turned the colloquy to Mexico’s role in this dispute, and told Stone, “if we come out your way, Mexico has all the leverage in the world.” Kagan suggested, “Mexico could say, ‘Well, maybe we’d like to see you squirm’ and not let the U.S. comply with the [court’s] order.”  She continued, “The point is that requiring the secretary to do something like this essentially says to Mexico, ‘it’s all yours you have control.'”  “You’re putting the Secretary’s immigration decisions in the hands of Mexico,” Kagan told Stone incredulously.

Prelogar ended with a rebuttal framing the issue before the justices as one of the utmost national concern regarding the appropriate role of a federal district court to issue sweeping injunctions. Prelogar explained that Mexico’s consent is needed to operate the MPP program, and that extensive coordination with the Mexican government is essential.  “The idea here that a single district court in Texas that is mandating those results, that is compelling the Executive engage in those ongoing negotiations,” and is doing so under a “constant threat” from the State of Texas “shows that something has powerfully gone awry here,” argued Prelogar.

[image via Erin Schaff/Pool/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos