On Tuesday, the United States Supreme Court appeared deeply divided over the current president's efforts to end the Trump-era immigration policy known as the Migrant Protection Protocols or Remain in Mexico. The program requires migrants seeking asylum to remain south of the border while their cases were reviewed, an effective tool in weeding out fraudulent asylum claims made by predominantly economic migrants.
USAToday reports:
In nearly two hours of spirited argument, the high court's conservative majority wrestled with whether the Biden administration had adequately considered the program's benefits, the limits of the government's authority to release migrants into the United States, and the significance of Congress requiring officials to detain immigrants but then declining to provide the federal funding needed to meet that obligation.
The Remain in Mexico case made its way to the Supreme Court on an expedited basis, given its national importance, especially when immigration has become a significant issue for the midterm elections.
Remain in Mexico was enacted by President Trump in January 2019 as part of the administration's efforts to ease a then-border surge by creating other avenues than "catching and releasing" migrants who claimed asylum but would likely not show up to their immigration court date.
USAToday summarizes the program as:
It essentially requires migrants from Central American nations seeking asylum in the USA to wait in Mexico for those claims to be reviewed, a process that can take months or years. By the end of 2020, the government had enrolled 68,000 people in the program, according to court records.
However, after running on the issue, Biden ordered his Secretary of Homeland Security to rescind the program in June 2021. Texas and Missouri quickly sued the administration, stating that DHS did not follow the proper procedures to end the program.
A district court in Texas sided with the states on August 13, 2021, and ordered Biden to reinstate the program, the Appeals Court refused to step in, and the Supreme Court then declined to halt the lower court's ruling on August 24, 2021, meaning the Biden Admin. had to reinstate the program while the high court settled the case.
Though the program has been reinstated, Biden and Mayorkas appear to be relying on it much less; as of the end of February 2022, 1,602 aliens were enrolled, and 893 had been returned to Mexico, according to recent Department of Homeland Security testimony at the Supreme Court.
The White House argues that the program is still on halt because it puts the administration in an "untenable position of either violating a court order or being at Mexico's mercy in negotiations to return migrants to that nation," reports USAToday. "That's because the United States cannot unilaterally send Central Americans across the border without Mexico's approval," the erroneous argument concludes.
"You're putting the secretary's immigration decisions in the hands of Mexico," said Associate Justice Elena Kagan to Texas Solicitor General Judd Stone. Chief Justice Roberts seemed to agree, suggesting it was "a bit much" for Texas to try to "substitute itself" for the judgment of DHS immigration officials.
USAToday explains the crux of the issue as:
The government doesn't dispute that it's required by law to detain those immigrants. The question is what is it supposed to do with those people when Congress hasn't provided the money to carry out that requirement? Texas and Missouri say the law demands that most of those people be returned to Mexico. The Biden administration, [which winds up paroling thousands of migrants into the United States to await hearings], counters that the law has no such requirement, and points out that no prior administration has ever interpreted the law that way.
Some more conservative justices have raised concerns about the Biden approach as well; Associate Justice Samuel Alito questioned how thoroughly agents were reviewing migrants, and Chief Justice Roberts said that the government's position meant that "there is no limit at all on how many you can release into the United States."
A decision in the case is expected this summer.
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