The Supreme Court on Tuesday signaled that it could approve President Joe Biden’s plan to rescind the Trump-era "Remain in Mexico" policy for asylum seekers.
A majority of justices during oral arguments suggested they would sign off on the Department of Homeland Security's plan to terminate the program, which a federal judge stayed last August. Ending the program would allow asylum seekers to wait in the United States while the courts processed their claims. Red state challengers claim ending Remain in Mexico would violate federal law. But Justices Brett Kavanaugh and Amy Coney Barrett suggested an immigration rule that allows the release of asylum seekers for humanitarian reasons on a case-by-case basis could save the administration’s plans.
The courts have allowed President Joe Biden to finesse both sides of the immigration crisis at the southern border. Rescinding Remain in Mexico, known formally as the Migrant Protection Protocols (MPP), placated leftwing activists who said it was cruel to force asylum seekers to wait in refugee camps before their court dates. But court orders dating to summer 2021 required immigration officials to maintain MPP, if only half-heartedly.
Federal law requires the government to detain asylum seekers or return them to bordering countries pending a hearing. The Trump administration cited that law as the legal basis for Remain in Mexico. Lawyers for Texas say the Biden administration will violate that law if it succeeds in ending Remain in Mexico.
Chief Justice John Roberts said that challenge doesn’t overcome the law.
"If you're stuck because there's no way you can comply with the law and deal with the problem there, I guess I'm just wondering why that's our problem," Roberts told Prelogar. "Our problem is to say what the law is."
Though detention is the default, paroling migrants is allowed on a case-by-case basis if there is an "urgent humanitarian reason or significant public benefit." Kavanaugh and Barrett pressed Texas solicitor general Judd Stone on whether Biden’s termination of Remain in Mexico could survive under that exception. Stone struggled to give a persuasive answer, which could provide a crucial lifeline for the administration.
Operating MPP requires the cooperation of the Mexican government, which opposes the program. Justice Elena Kagan said a win for Texas would give the Mexican government powerful leverage over U.S. diplomats.
"Mexico has all the leverage in the world to say: Well, you want to comply with the Court's order? Here are 20 things that you need to do for us," Kagan said.
Tuesday’s arguments also broached the ongoing debate over judicial involvement with immigration policy. Former president Donald Trump railed against courts that blocked his immigration agenda, a challenge that’s dogged his successor. The chief justice nodded to that concern Tuesday.
"I think it's a bit much for Texas to substitute itself for the [DHS] secretary," Roberts told Stone.
The Supreme Court’s 2020 decision requiring the Trump administration to maintain the Deferred Action for Childhood Arrivals program is also at play in the case. The DACA decision faulted Trump administration officials for failing to explore alternatives and the interests of migrants in the program. The Fifth U.S. Circuit Court of Appeals said Biden’s bid to terminate MPP is invalid for the exact same reasons, citing the DACA decision.
That outcome was a bitter reversal for liberals and immigration advocates elated at the DACA ruling.
Even as administration lawyers push to dismantle Remain in Mexico, the Department of Homeland Security is bracing for a surge in migration. Homeland Security leadership explored relaxing security clearance requirements to beef up vetting and border protection operations, according to internal memos the Washington Free Beacon obtained in April.
Trump-era figures indicate that only a fraction of MPP enrollees had legitimate asylum claims. About 68,000 migrants were enrolled in MPP at its peak, according to the Migration Policy Institute. Of those, 32,000 applications were denied once their cases were heard. Another 9,000 cases were dismissed on technicalities or because migrants returned to their home countries. About 27,000 were awaiting hearings when Biden took office. Just 723 were granted asylum.
A coalition of 60 pro-immigration groups is backing the administration in the Supreme Court. They described a vicious and unstable security situation on the Mexican side of the border region in an anti-MPP amicus brief.
"Mexican security forces remain helpless to stop the kidnapping, extortion, and murder of migrants by cartels, and continue to collaborate with the cartels in such crimes," the brief reads.
A decision in the case, No. 21-954 Texas v. Biden, is expected by summer.