Supreme Court to Hear 'Remain in Mexico' Case Tuesday The U.S. Supreme Court building (Samuel Corum/Getty Images)
By Eric Mack | Monday, 25 April 2022 07:31 PM
The "Remain in Mexico" policy will be before the Supreme Court on Tuesday at it hears arguments in the Biden administration's effort to end the Trump administration policy that turns away asylum-seekers at the border until their case can be heard.
President Joe Biden halted the policy his first day in office, but a judge forced him to reinstate it in December.
Homeland Security Secretary Alejandro Mayorkas, in an October order to end "Remain in Mexico," reluctantly conceded the policy caused a drop in weak asylum claims under former President Donald Trump but said it did not justify the harms.
The issue before the Supreme Court is whether the policy is discretionary and can be ended, as the Biden administration argues, or is the only way to comply with what Texas and Missouri say is a congressional command not to release the migrants in the United States.
Without adequate detention facilities, the states argue the administration's only option is to make migrants wait in Mexico for asylum hearings in the U.S.
The two sides also disagree about whether the way the administration ended the policy complies with a federal law that compels agencies to follow certain rules and explain their actions.
"Historically, there's been a great deal of deference given to the president and the administration when it comes to how to enforce the borders," University of California-Davis immigration law professor Kevin Johnson told The Hill.
"And now we've got a new administration that wants to unravel or dismantle some of the Trump administration's policies, and the question is how and what discretion does the executive branch have to do that."
A ruling is expected shortly after the administration ends another key Trump-era border policy, lifting pandemic-related authority to expel migrants without a chance to seek asylum on May 23. The decision to end Title 42 authority, named for a 1944 public health law, is being legally challenged by 22 states and faces growing division within Biden's Democrat Party.
Officially called the "Migrant Protection Protocols" (MPP), about 70,000 migrants have been sent to remain in Mexico after Trump launched it in 2019.
The lower court ruled the MPP must remain in place until the Biden administration goes through the appropriate administrative procedures to end it. After DHS still ruled to overturn the MPP, a federal appeals court ruled with the lower court's initially ruling, forcing the Biden administration to appeal to the Supreme Court.
"DHS has thus been forced to reinstate and continue implementing indefinitely a controversial policy that the Secretary has twice determined is not in the interests of the United States," DHS's appeal read in December.
Texas and Missouri have the backing of 19 other states, led by Indiana, arguing to keep the MPP.
"In recent years, states have borne costs related to education, healthcare, and other government-assistance programs serving the rising influx of illegal aliens released into the country — not to mention the human costs to vulnerable populations resulting from human trafficking and drug smuggling (particularly dangerous drugs like fentanyl) across the border," the defenders of MPP wrote to the court. "[MPP] proved highly successful at staunching the flow of illegal aliens across the border."
Information from The Associated Press was used in this report.