U.S. Supreme Court hears arguments on whether Biden can toss Trump’s “remain in Mexico” policy

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

The U.S. Supreme Court heard arguments Tuesday morning on whether the Biden administration can scrap a Trump-era policy that forces asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts.

During two hours of arguments, the lawyers largely focused on a central question: Does the executive branch have the sole authority to set U.S. immigration policies?

The case reached the Supreme Court after a federal district judge in Texas last year ruled that the Biden administration violated immigration law by not detaining every immigrant attempting to enter the country. U.S. District Judge Matthew J. Kacsmaryk ordered the Biden administration to restart the Migrant Protections Protocols, also called “remain in Mexico,” which the Trump administration first implemented in January 2019 and Department of Homeland Security Secretary Alejandro Mayorkas canceled in June 2021.

That decision led Texas and Missouri to sue the Biden administration in April 2021, arguing that canceling MPP violated administrative law and that without the program, human trafficking would increase and force the states to expend resources on migrants — such as providing driver’s licenses, educating migrant children and providing hospital care.

The Biden administration argued it has the discretion to end the program and that it was not an effective way to deal with migrants seeking asylum.

During Tuesday’s arguments, Texas Solicitor General Judd Stone argued that if the U.S. can’t detain every immigrant attempting to enter the country, immigration law says the federal government must return them to Mexico. He said MPP allowed the federal government to comply with that part of the law.

“MPP, as implemented, reduced the number of violations. It did not fully satisfy the executive’s mandate,” Stone told the justices. “But so far as it went, it complied with the executive’s obligations to return rather than detain the aliens enrolled in MPP.”

U.S. Solicitor General Elizabeth Prelogar, the Biden administration’s lawyer, argued that Congress has allocated only enough money to pay for just over 30,000 beds for migrants detained at the border, which isn’t enough for the thousands more who come to the U.S.-Mexico border every month.

Migrants they can’t detain are either quickly expelled under the pandemic-era emergency health order known as Title 42, are released inside the country in lieu of bond or are allowed to be let into the country without detainment on a case-by-case basis, she said, adding that there is a public benefit to release them. She said agents on the ground have the discretion to make that determination.

These are all options Congress has approved, she said.

“Nothing in the statutory text or history compels [the Department of Homeland Security] to use MPP whenever Congress fails to provide sufficient funds for universal detention,” Prelogar argued.

Justice Brett Kavanaugh asked Prelogar if Congress preferred detention when it passed immigration law and if there is truly a public benefit to releasing migrants.

“There’s no real explanation of how the public is benefited by more people coming into the United States who are not lawfully admitted into the United States rather than trying, if feasible, for some of those people to remain in Mexico,” he said.

The court’s liberal justices brought up the issue that the lower court’s decision has forced the White House to enter into a deal with Mexico — which has to agree to receive migrants sent over the border through MPP — when presidents historically have had broad authority on foreign policy issues.

“It puts the United States essentially at the mercy of Mexico,” Justice Elena Kagan said. “Mexico has all the leverage in the world to say, ‘Well, you want to do that, you want to comply with the court’s order? Here are 20 things that you need to do for us.’ Or maybe Mexico says, ‘No, we’d like to see you squirm and not be able to comply with the court’s order.’”

Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School, said the justices will have to wrestle with the fact that at any point Mexico could change its mind on whether it wants to continue to accept migrants expelled from the U.S. through the program.

“How can a court require the secretary for the Department of Homeland Security to dump busloads of people into Mexico if Mexico doesn’t comply?” she said.

After the oral arguments, Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt — who had filed the lawsuit jointly in Texas — joined Stone at a news conference.

“I really trust that we did the best we could today,” Paxton said. “I really believe we’re going to get a good result with this, and hopefully from the consequences of this huge loophole that everyone knows is a loophole.”

About 70,000 non-Mexican asylum-seekers were sent to Mexico through MPP, leading to refugee camps on the Mexican side of the border, where many migrants became targets for kidnappers and drug cartels.

Human Rights First, a New York-based organization, recorded 1,544 cases of killings, rapes and kidnappings of migrants who were forced to remain in Mexico between MPP’s launch in January 2019 and January 2021, when the Biden administration suspended the policy. One woman enrolled in the program told The Texas Tribune she had been raped by a Ciudad Juárez police officer as she waited in Mexico. Since the program resumed in December, immigration officials have enrolled just over 3,000 migrants.

On average, it takes five years for a migrant to get a decision on their asylum case. Under a new plan that went into effect this year, the Biden administration’s goal is to wrap up asylum cases in six months.

Abby Livingston contributed to this story.