Biden Administration Urges Supreme Court to Let It Drop 'Remain in Mexico' Program

Biden Administration Urges Supreme Court to Let It Drop 'Remain in Mexico' Program
The sun rises behind the U.S. Supreme Court in Washington on Nov. 10, 2020. (Alex Brandon/AP Photo)
Matthew Vadum

The Biden administration told the Supreme Court on April 26 that it shouldn't have to continue operating the Trump-era "Remain in Mexico" program that requires non-Mexican asylum-seekers arriving at the southern border to wait in Mexico for processing.

The case at hand is Biden v. Texas, court file 21-954. The high court agreed on Feb. 18 to hear the case, an appeal from the U.S. Court of Appeals for the 5th Circuit. One hour was set aside for the hearing, but it ran 1 hour and 47 minutes.

Upon assuming office, Biden halted enrollments in the program, part of the Migrant Protection Protocols enforced by President Donald Trump, created to discourage individuals from making fraudulent asylum claims.

These Migrant Protection Protocols, approved by Congress and signed into law during the Clinton administration, had not been acted upon until then-Homeland Security Secretary Kirstjen Nielsen announced in December 2018 that they would be implemented. She said the goal was to curtail the so-called catch-and-release system, in which individuals made fraudulent asylum claims knowing they would be let into the United States and able to stay for years before their court appearance.

Under Biden, the Department of Homeland Security (DHS) issued a memorandum providing that, effective Jan. 21, 2021, it would "suspend new enrollments in the Migrant Protection Protocols (MPP), pending further review of the program. Aliens who aren't already enrolled in MPP should be processed under other existing legal authorities."

Days later, Biden signed three new executive orders aimed at undoing Trump-era immigration policies. One of the documents, Biden said during a ceremony at the White House, "orders a full review of the previous administration's harmful and counterproductive immigration policies, basically across the board."

But in August 2021, at the request of Texas and Missouri, federal Judge Matthew Kacsmaryk of the Northern District of Texas, a Trump appointee, ordered the government to keep the MPP policy in effect until it was "lawfully rescinded." The Biden administration had failed to properly justify ending the policy and failed to uphold a 1996 law requiring the detention of certain migrants, the trial court judge found. The 5th Circuit sided with the two states.

U.S. Solicitor General Elizabeth Prelogar said during oral arguments at the Supreme Court that Biden's Homeland Security Secretary Alejandro Mayorkas "exercised his statutory discretion to make a policy judgment" and "found that the benefits of MPP were outweighed by its domestic, humanitarian, and foreign policy costs."

"Yet the lower courts ordered DHS to reinstate MPP in perpetuity, requiring ongoing negotiations with Mexico to send thousands of noncitizens into its territory. That was error," Prelogar said.

Mayorkas "should be allowed to finally put his policy decision into effect," she said.

Section 1225 of the Immigration and Nationality Act (INA) gives the DHS secretary "discretionary return authority ... not a mandate," she said. "Nothing in the statutory text or history compels DHS to use MPP."

Neither Texas nor Missouri have given examples of any official interpreting the section as a mandate. But on their interpretation of the law, "every presidential administration, in an unbroken line for the past quarter-century, has been in open violation of the INA," Prelogar said.

"The courts' interpretation compels sensitive foreign policy negotiations and would require transformative changes to the government's border operations," she said. "If Congress had wanted to mandate those results, it would have spoken clearly."

Responding to Justice Clarence Thomas, Prelogar said the lower courts' rulings intrude on the federal government's foreign policy powers.

"The particular interpretation of the statute that the district court adopted here implicates grave and serious foreign policy implications," she said.

"Of course, the executive branch has primary responsibility for managing foreign relations and conducting those kinds of negotiations. And I think that if Congress had intended to override the executive's ordinary discretion that it enjoys with respect to that kind of foreign policy relationship, then, at the very least, it should have made that intent express in the statute."

The federal official also said it's impossible to detain everyone who arrives at the southern border because Congress hasn't allocated enough money to cover immigration detention beds.

Chief Justice John Roberts seemed to side with the states when he told Prelogar that while he was "sympathetic" to her concern that the government "can't detain enough people," that isn't the Supreme Court's problem.

"You're in a position where the facts have sort of overtaken the law," Roberts said. "But in that situation, what are we supposed to do? It's still our job to say what the law is. And if we say what the law is and you tell us we can't do anything about it, where do you think that leaves us?"

Texas Solicitor General Judd E. Stone II said the law generally requires that the U.S. detain migrants or send them back to Mexico. If it lacks the resources to detain them, it should return them to Mexico so they can wait there for asylum processing, he said.

The Biden administration, Stone said, has admitted that it's not complying with the immigration detention provisions of the INA.

"Petitioners suggest that no administration, no executive, has fully complied with their detention obligations. That certainly doesn't prove that past administrations assumed those obligations could be ... shirked in the event that they preferred not to use one of Congress's allowed statutory tools, but I have no reason to think that that's incorrect."

Justice Thomas pushed back, saying: "Assuming you're right, wouldn't it be odd for Congress to leave in place a statute that would appear to be impossible to comply with?"

"No, Your Honor," Stone replied.

"Congress ... as my friends on the other side mentioned, had this mandatory detention obligation for over a century. It has added authorities to enable the executive to attempt to meet it additionally."

If Congress doesn't provide enough money to enforce the provisions of the law, "Then the executive has to do the best it can ... with the amount of money that's been appropriated to it and the other lawful ... authorities it's been provided."