Supreme Court mulls attempt to end ‘Remain in Mexico’ policy

Some questions from justices highlighted how Congress has not funded enough detention beds to detain all migrants crossing the border

Immigration activists demonstrate in front of the U.S. Supreme Court in Washington on Tuesday, as the Supreme Court hears oral arguments about a Trump-era border policy that denies asylum-seekers entry to the U.S. while their case is reviewed. 
 (Bill Clark/CQ Roll Call)
Immigration activists demonstrate in front of the U.S. Supreme Court in Washington on Tuesday, as the Supreme Court hears oral arguments about a Trump-era border policy that denies asylum-seekers entry to the U.S. while their case is reviewed. (Bill Clark/CQ Roll Call)
Posted April 26, 2022 at 3:15pm

The Supreme Court appeared hesitant Tuesday to require the Biden administration to return to Mexico any migrant it doesn’t have room to detain, noting that no presidential administration has done so before and Congress has failed to fund sufficient detention capacity.

The justices heard about two hours of oral arguments in a legal challenge brought by Texas and Missouri to the Biden administration’s attempt to end the "Remain in Mexico” policy, also known as the Migrant Protection Protocols, or MPP.

The policy, launched under the Trump administration in early 2019 and panned by human rights advocates, required thousands of asylum-seekers to wait in Mexico for decisions in their U.S. immigration cases.

The states have argued the federal government is legally mandated to push all migrants who cross the border back to Mexico if they cannot be detained in the U.S.

Judd E. Stone II, Texas’ solicitor general, told the justices the Remain in Mexico policy should be kept because it means the government can more fully comply more with that requirement.

That position drew skeptical questions from justices on both ideological wings of the court about whether the states are trying to substitute their policy decisions for those of the executive branch.

“I think it’s a bit much for Texas to substitute itself for the [Homeland Security] secretary and say that, ‘You may want to terminate this, but you have to keep it because it will reduce to a slight extent your violations of the law,’” Chief Justice John G. Roberts Jr. said.

Lack of funding

Other questions from justices highlighted how Congress has not funded enough detention beds to detain all migrants crossing the border.

In fiscal 2022, for example, Congress gave the Department of Homeland Security enough funding to detain up to 34,000 adult migrants at any given time, even though border agents have logged more than 150,000 encounters with migrants each month since March 2021.

Justice Clarence Thomas noted no other presidential administrations have followed the law’s requirements as the states describe them.

“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,” Thomas said to Stone.

Stone replied this is “what happens when Congress doesn’t provide enough money to be able to actually require that to be satisfied.”

The justices also picked up on the Justice Department’s argument that Texas’ interpretation, if adopted, would mean every presidential administration has violated federal immigration laws since the contested provisions was passed more than 25 years ago, including former President Donald Trump. Stone did not dispute this characterization.

Thomas asked Stone whether the state could have brought a similar lawsuit over the Trump administration’s noncompliance with immigration detention laws, given that most migrants encountered at the border were not returned to Mexico, even at the program’s peak. Stone admitted a “related” lawsuit could have been filed.

Foreign relations concerns

Some of the high court’s more liberal justices raised concerns Texas’ position would cause interference with the federal government’s foreign relations powers, specifically as it relates to ongoing negotiations with Mexico in implementing the program.

“Foreign affairs is involved, and judges, this is above your paygrade, okay? Stay out of it, as much as you can,” Justice Stephen G. Breyer said, paraphrasing a longstanding Supreme Court precedent on such issues.

But at the same time, the court’s conservative justices appeared to wrestle with the high numbers of migrants who have been released into the U.S. pending their immigration cases. They questioned if the administration had shown there was a sufficient “public benefit” in doing so, as required by law.

Roberts noted that under the Biden administration’s argument, there is “no limit at all” to the number of people who may be released into the U.S.

“You’re sort of making it even harder for you to do anything other than release the people encountered at the border into the United States,” Roberts said, “even though the statute that allows you to release people in the United States says there has to be a significant public benefit.”

The high court is considering the Biden administration’s request to reverse a lower court ruling ordering the government to reinstate the “Remain in Mexico” program. A decision is expected before the end of the term at the end of June.

In his August ruling, U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas ordered the policy revived. Kacsmaryk found the administration has not followed the administrative requirements when rescinding the policy, and that the federal immigration statute mandates returns to Mexico when detention isn’t possible.

The administration revived the program in December, as it fought the ruling in court. Homeland Security Secretary Alejandro Mayorkas also issued a second memo in October providing further reasoning for rescinding the program, including by detailing the harms to migrants waiting in Mexico.

The U.S. Court of Appeals for the 5th Circuit later upheld Kacsmaryk’s ruling and refused to consider Mayorkas’ subsequent memo.

The high court is considering both whether the immigration statute requires migrants to be returned to Mexico if not detained and whether the lower courts should have considered the second memo.