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Supreme Court to hear arguments on ‘Remain in Mexico’ revival

Biden administration warned the case could tie the hands of the executive branch on immigration and foreign relations

Refugee migrants from Central and South American countries seeking asylum in the United States live in tents earlier this month at the Movimiento Juventud 2000 shelter  in Tijuana, Mexico.
Refugee migrants from Central and South American countries seeking asylum in the United States live in tents earlier this month at the Movimiento Juventud 2000 shelter in Tijuana, Mexico. (Patrick T. Fallon/AFP via Getty Images file photo)

The Supreme Court will hear oral arguments Tuesday in an immigration case that threatens to curb the power of presidents to reverse the policies of their predecessors — on the border and beyond.

The case centers on the Biden administration’s attempt to end the “Remain in Mexico” policy, also known as the Migrant Protection Protocols, shortly after taking office. The Trump administration launched that policy in early 2019, and it forced migrants to wait in dangerous areas of northern Mexico for decisions in their U.S. immigration cases.

Lower courts have ruled that the Biden administration didn’t follow the rules when it tried to follow through on a campaign promise and rescind the policy over humanitarian concerns. Those courts ordered the policy reinstated, and it remains in place.

The Justice Department has warned the Supreme Court that if the justices decide that the Biden administration can’t end the policy, it could set a legal precedent that ties the hands of the executive branch on immigration and foreign relations.

And immigrant advocates say a more expansive ruling from the conservative wing of the court could even limit future presidential administrations’ ability to reverse their predecessors’ policies in other areas.

“It would have far reaching implications across administrative law: everything from environmental regulations to national highway and traffic safety regulations to aviation issues to food safety to drug safety,” said Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School. “The importance of this case before the Supreme Court cannot be overstated.”

The high court will also consider what the law requires immigration officials to do with migrants who cross the border, particularly since Congress has not appropriated enough funds to detain all of them.

Policy revived

Republican officials from Missouri and Texas filed the lawsuit over the move to end the policy, which is now the first major immigration case to reach the high court since President Joe Biden took office. And similar to several immigration blockbuster cases before it, it tackles a question of administrative law that has real world consequences.

Human Rights First documented more than 1,500 murders, rapes, kidnappings and other assaults against migrants enrolled in the program during the Trump administration.

U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas ruled in August the administration did not sufficiently explain its rationale for ending the program and ordered the government to reinstate it. He also found the administration violated a 1996 provision of the federal immigration statute by failing to either detain or return migrants crossing the border.

The Biden administration appealed. Homeland Security Secretary Alejandro Mayorkas later released a 39-page memo outlining his concerns with the policy and reasons for rescinding it, including the “substantial and unjustifiable human costs on migrants.”

But a three-judge panel on the U.S. Court of Appeals for the 5th Circuit sided with the states and refused to consider Mayorkas’ subsequent memo. The appeals court also backed the lower court’s finding that the immigration statute actually requires the federal government to return to Mexico any migrants it can’t detain.

The Supreme Court agreed to take up the case just a few months ago on a fast-tracked schedule.

The Justice Department has argued the lower courts misinterpreted the federal immigration statute. The appeals court also “ignored bedrock principles of administrative law” by refusing to consider further explanation, government lawyers said in court filings.

Texas and Missouri, backed by briefs from conservative legal groups, including one led by former Trump adviser Stephen Miller, have countered that federal immigration laws require the U.S. to detain migrants crossing the border, either in detention facilities or outside the U.S., except for case-by-case exceptions. The states also dismissed Mayorkas’ later memo as “repeated gamesmanship.”

Potential fallout

If the justices rule Mayorkas’ subsequent memo cannot be considered, it could create a “one-and-done rule” for any federal agency that wanted to reverse policies made under prior administrations, said Karen Tumlin, founder and director of Justice Action Center, who defended the Deferred Action for Childhood Arrivals program, or DACA, at the high court two years ago.

“It basically comes up with a warning gun: You get one shot to undo the policy. If one single judge in any venue thinks you didn’t do it right, then you can’t come back,” Tumlin said.

A ruling in favor of Texas and Missouri could also carry sweeping consequences regarding how asylum is processed at the border.

Tuesday’s hearing comes as the Biden administration faces heightened pressure from Congress over how to manage the southwest border, which is seeing some of the highest migration levels in years.

While the government argues against the policy in court, Department of Homeland Security officials told reporters earlier this month the agency is enrolling more migrants in the reinstated “Remain in Mexico” policy in anticipation of lifting separate pandemic-related border controls.

Advocates have said migrants sent back to Mexico under this policy are vulnerable to gang violence and lack sufficient access to American immigration lawyers.

“This case literally is about a matter of life and death,” said Marielena Hincapié, executive director of the National Immigration Law Center. “‘Remain in Mexico’ is not a normal immigration policy. From our perspective, it’s a human rights disaster and a civil rights disaster.”

And if the high court decides the 1996 law does mandate the government to return to Mexico any migrant it doesn’t have capacity to detain, the Biden administration might face pressure to significantly ramp up the number of migrants it sends back over the border.

Funding issue

The district court judge ordered the government to make a “good faith” effort to reimplement the program unless Congress funds sufficient detention capacity for DHS to detain all migrants who are subject to mandatory detention.

Customs and Border Protection logged more than 220,000 encounters with migrants in March alone. For fiscal 2022, congressional appropriators gave the Department of Homeland Security enough money to fund 34,000 immigration detention beds at any given time.

“That is an insane interpretation of a statute passed in 1996,” Tumlin said of the states’ argument. “It would really conflict with Congress’ understanding of how detention is funded.”

Justice Department lawyers have also argued in court briefings this interpretation would mean every presidential administration since that law was passed has been in violation of it, including former President Donald Trump, whose administration enrolled some 70,000 migrants in the program but did not return or detain everyone.

Punt possible

The high court could opt instead for a ruling that wouldn’t upend executive branch authorities over immigration, as it has in two immigration-related cases in recent years

For instance, the high court could decide Mayorkas’ follow-up memo was fair game and punt the case back to the appeals court to consider it.

This would keep the “Remain in Mexico” policy in place for the time being, but leave the door open for the Biden administration to rescind it once the Texas court is satisfied procedural requirements were met.

Columbia Law School’s Mukherjee said a narrower ruling sending the case back down would be a “great compromise position.”

In June 2020, the Supreme Court ruled 5-4 to block the Trump administration from revoking DACA after finding it had not followed correct procedures to terminate it.

A year earlier, the justices blocked the Trump administration from adding a question about citizenship status to the decennial census after similarly taking issue with government officials’ stated reasoning for the change.

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