The Supreme Court heard arguments on Tuesday over President Joe Biden’s bid to end former President Donald Trump’s “Remain in Mexico” policy, which makes asylum-seekers coming from the southern border reside in Mexico while awaiting immigration hearings.
Biden’s Department of Homeland Security has disputed the Trump-era policy and is appealing lower court rulings that required the 2019 immigration program, previously known as the Migrant Protection Protocols, to remain in place. The president initially paused the program after taking office in January 2021, and the DHS ended the program in June 2021.
“All the court needs to say in this case is that the contiguous territory return provision does not carry the meaning that justified the district court’s injunction in this case,” Justice Department Solicitor General Elizabeth Prelogar said Tuesday, arguing against the Trump-era policy.
Supporters of the former administration’s policy include Texas and Missouri, though 19 other GOP-led states filed an amicus brief in the case, led by Indiana. When the Trump-era policy was first enacted, nearly 70,000 migrants enrolled in the program were sent back to Mexico as their cases were pending.
The 6-3 conservative majority on the high court appears skeptical of the ability of the DHS to end the Migrant Protection Protocols. Justice Brett Kavanaugh, a Trump appointee, argued there is no public benefit to ending the former administration’s policy.
“Congress has expressed a preference for detention where, where that’s available?” Kavanaugh asked Prelogar.
“Yes, we do,” she said. “We don’t think that that is a ‘may’ or simply neutrality on the issue.”
Chief Justice John Roberts also called Prelogar’s interpretation of the parole statute “entirely manipulable” due to the limited detention capacity at the southern border while a portion of the position presented by the DHS argued that “significant public benefit” includes detention capacity.
Prelogar responded that Congress is clear that there is no limit, arguing detention capacity is not up to the DHS.
“I guess I’m just wondering why that’s our problem,” Roberts said at the opening of Tuesday’s arguments. “Our problem is to say what the law is. And if you are in a position where you say, ‘Well, we can’t do anything about it.’ What do we do?”
The most recent ruling on that matter came in December when the 5th U.S. Circuit Court of Appeals wrote a scathing ruling upholding the initial order against the termination of the protocols.
“DHS claims the power to implement a massive policy reversal — affecting billions of dollars and countless people — simply by typing out a new Word document and posting it on the internet,” the court wrote.
At the core of the legal fight is whether the immigration program is discretionary and may be ended, as the DOJ argued, or whether the only way to comply with what states say is a congressional command not to release migrants through U.S. borders.
Democratic-led states and liberal groups have advocated the administration’s side while also voicing concerns about migrants forced to wait in Mexico who say the conditions across the southern border are unstable and make it difficult to find lawyers to handle asylum hearings.
A decision on the case is expected before the end of the present court term in June.
