OPINION ANALYSIS
on Jun 30, 2022
at 1:13 pm
The Supreme Court on Thursday handed the Biden administration a major victory, giving it the green light to end one of the Trump administration’s signature immigration programs: the controversial “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court.
The justices divided 5-4, with the court’s three liberal justices and Justice Brett Kavanaugh joining an opinion by Chief Justice John Roberts.
The ruling was the latest chapter in the tug-of-war over the policy, formally known as the Migrant Protection Protocol, since the Trump administration announced it in 2018. The justices allowed the Trump administration to begin enforcing the policy after a federal district judge blocked it, and a few months later the justices agreed to review a ruling by the U.S. Court of Appeals for the 9th Circuit holding that the policy likely violated both federal immigration and international law. The justices dismissed that case last year, however, after the Biden administration attempted to end the policy.
Texas and Missouri challenged the Biden administration’s efforts to terminate the policy. After a federal district judge in Texas ordered the federal government to reinstate the policy, both the U.S. Court of Appeals for the 5th Circuit and the Supreme Court rejected requests from the Biden administration to temporarily put the district judge’s ruling on hold, prompting the government to revive the policy while litigation continued.
The court on Thursday agreed with the Biden administration that ending MPP would not violate federal law. The statute at the center of the case, Section 1225(b)(2)(C) of the Immigration and Nationality Act, provides that the federal government “may” return an asylum seeker who arrives at the U.S. border with Mexico or Canada to that country to await a hearing. The use of the word “may,” Roberts explained, indicates that the government has the discretion to return asylum seekers, but it is not required to do so. And that discretionary authority is not changed, Roberts continued, by another provision of federal law that makes detention mandatory. If Congress had wanted to require the government to return asylum seekers to Mexico or Canada if it did not detain them, Roberts reasoned, it would have said so, rather than making return discretionary. And indeed, Roberts observed, every presidential administration has interpreted Section 1225(b)(2)(C) as discretionary.
The ”foreign affairs consequences” of requiring the government to return all asylum seekers to Mexico while they wait for a hearing confirm, Roberts added, that the 5th Circuit’s interpretation of Section 1225(b)(2) is incorrect. The federal government cannot return asylum seekers to Mexico without the Mexican government’s cooperation, Roberts explained. Requiring the Biden administration to keep MPP in place, Roberts wrote, had “force[d] the Executive to the bargaining table with Mexico, over a policy that both countries wish to terminate” and allowed the district court to “supervise its continuing negotiations with Mexico to ensure that they are conducted ‘in good faith.’” “Congress did not,” Roberts concluded, “intend section 1225(b)(2)(C) to tie the hands of the Executive in this manner.”
Justice Amy Coney Barrett indicated that, with regard to whether the Biden administration can end MPP, she agreed with the majority’s analysis. But she would not have reached that question, because she would have sent the case back to the lower courts to determine whether they had the power to enter an injunction requiring the Biden administration to reinstate MPP.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch joined Barrett’s dissent to the extent that she would have remanded the case to the lower courts; they did not agree that the majority had properly interpreted Section 1225(b)(c). Instead, in a dissent by Alito that Thomas and Gorsuch joined, they rejected the Biden administration’s contention that it is not required to either detain asylum seekers or return them to Mexico to await a hearing. The administration’s contention that “it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings” is a practice that “violates the clear terms of the law, but the Court looks the other way.”
This article was originally published at Howe on the Court.
