Supreme Court Questions Biden Bid to End ‘Remain-in-Mexico’ (2)

The U.S. Supreme Court questioned President Joe Biden’s effort to rescind his predecessor’s “remain in Mexico” policy, which has forced tens of thousands of asylum-seekers to stay south of the border while their applications are processed.

Hearing arguments in Washington Tuesday, the court’s conservative justices generally signaled support for a lower court order that forced the administration to restart the program, established under President Donald Trump.

Texas and Missouri contend the program is legally required given that the number of asylum seekers far outstrips detention capacity. Even with the remain-in-Mexico program in place, the government temporarily released 80,000 people into the U.S. during March alone, a Biden administration lawyer said Tuesday.

Justice Brett Kavanaugh questioned whether the Department of Homeland Security in an October 2021 memo had adequately grappled with the requirement that people be released into the U.S. only for “urgent humanitarian reasons or significant public benefit.”

“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,” Kavanaugh said.

Critics say the policy, formally known as the Migrant Protection Protocols, is forcing people to live in dangerous and squalid conditions in Mexico. Supporters say it’s needed to manage a crush at the border and ensure that undocumented immigrants don’t disappear into the U.S. and fail to show up for their asylum hearings.

Biden Faces GOP Fire, Democratic Angst as Migrant Cases Unfold

The conservative-dominated Supreme Court hinted at its leanings in August, when it rejected Biden’s request to block a court order to restart the program while the litigation went forward. The three liberal justices dissented.

The court at the time suggested it viewed DHS’s explanation for its decision as inadequate. The majority pointed to a 2020 decision that cited similar reasons in blocking Trump from scrapping a program that shields some young undocumented immigrants from deportation.

Title 42

The argument coincides with legal and political pushback to the Biden administration’s separate plan to scrap pandemic-driven Title 42 border controls. The number of people arriving at the Mexican border has been surging, with government agents having more than 221,000 encounters with migrants last month, the highest number in at least two decades.

The Biden administration suspended the remain-in-Mexico policy on the day he was inaugurated last year and formally rescinded it on June 1.

U.S. District Judge Matthew Kacsmaryk in Texas ordered the program reinstated, saying the administration was violating federal immigration law and gave an inadequate explanation for the change under the law that governs administrative agencies. A federal appeals court upheld that order.

The rulings meant the administration had to negotiate with Mexico to put the program back in place -- a requirement that Justice Elena Kagan said Tuesday “puts the United States essentially at the mercy of Mexico” and gives that country “all the leverage in the world.”

Texas Solicitor General Judd Stone later said that “nothing about this injunction actually requires negotiation with a foreign power,” a comment that prompted an incredulous Kagan to interrupt.

‘Truckloads of People’

“What do you mean it doesn’t require negotiation with a foreign power?” Kagan said. “What are we supposed to do, just drive truckloads of people into Mexico and leave them without negotiating with Mexico?”

The dispute turns on the intersection of three provisions in federal immigration law. One says asylum applicants who aren’t clearly admissible “shall be detained,” a second says DHS can let those people stay in the U.S. on a “case-by-case basis,” and a third lets an administration return migrants to the country from which they arrived.

Stone told the justices that the “shall be detained” languages imposes a mandatory obligation and that remain-in-Mexico would mean fewer violations of it.

U.S. Solicitor General Elizabeth Prelogar, the Biden administration’s top Supreme Court lawyer, said Stone’s reading would mean that “every presidential administration in an unbroken line for the past quarter century has been in open violation” of the law.

Chief Justice John Roberts told Prelogar that the Biden administration’s interpretation is “entirely manipulable.”

“There is no limit, as you read the statute, to the number of people that you can release in the United States, right?” Roberts asked.

But Roberts also aimed tough questions at Stone, saying “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.’”

The court is scheduled to rule by July in the case, Biden v. Texas, 21-954.

(Updates with comments from Kagan, Roberts starting in 12th paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

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