Skip to content

Supreme Court can decide ‘Remain in Mexico’ issue, lawyers argue

U.S. solicitor general, state officials agree law would not prohibit court from deciding case on immigration program

The border wall near Columbus, N.M. The Supreme Court is expected to issue a decision on the so-called Remain in Mexico program by the end of June.
The border wall near Columbus, N.M. The Supreme Court is expected to issue a decision on the so-called Remain in Mexico program by the end of June. (Bill Clark/CQ Roll file photo)

The Biden administration agreed with Republican officials from Texas and Missouri on Monday that the Supreme Court has the authority to decide the core legal questions in a case about the fate of a Trump-era immigration program.

The Supreme Court already heard oral arguments last month in the case, about whether the Biden administration was allowed to rescind the so-called Remain in Mexico program, which is formally known as the Migrant Protection Protocols.

The justices then asked the U.S. government and the states to weigh in more on whether a federal immigration law limits what courts can do when it comes to certain immigration decisions.

U.S. Solicitor General Elizabeth Prelogar and the state officials both said the law wouldn’t prohibit the Supreme Court from deciding the case.

“There is no general jurisdictional impediment to this Court answering this question presented,” Texas and Missouri officials wrote in a brief.

Prelogar agreed the law “does not limit this Court’s jurisdiction or pose any obstacle to deciding the questions” before the high court.

In the case, the justices are considering whether a provision of a separate federal immigration statute requires the government to return to Mexico any migrants it lacks capacity to detain, as well as if an appeals court should have considered subsequent documents provided by the administration to explain its decision to rescind the policy.

The Biden administration and the state officials did clash in the briefs filed Monday on whether the jurisdictional law allowed a Texas federal judge to order the Biden administration to reinstate the Remain in Mexico program last year.

The Trump-era policy forced some 70,000 migrants seeking protection at the southwest border back into Mexico to wait for decisions in their immigration cases. The Biden administration tried to end the policy after taking office, prompting a legal challenge from Texas and Missouri.

Prelogar argued the jurisdictional law should have barred Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas from ordering the Remain in Mexico program revived.

Giving a judge that power would undermine the federal immigration statute’s “carefully designed system for limiting and channeling judicial review and authorize judicial micromanagement of immigration enforcement,” Prelogar wrote.

Lawyers for Texas and Missouri countered the jurisdiction-stripping statute doesn’t apply to Kacsmaryk’s injunction because he ordered the Biden administration to enforce — not block — certain immigration laws.

Kacsmaryk ruled in August that the administration did not sufficiently explain the reasoning by its attempt to end the Remain in Mexico policy and ordered the administration to make a good faith effort to reimplement the program.

The U.S. Court of Appeals for the 5th Circuit backed Kacsmaryk’s decision, and the Supreme Court took up the case on a fast-tracked schedule. A decision is expected by the end of the term at the end of June.

Recent Stories

Five races to watch in Pennsylvania primaries on Tuesday

‘You talk too much’— Congressional Hits and Misses

Senators seek changes to spy program reauthorization bill

Editor’s Note: Congress and the coalition-curious

Photos of the week ending April 19, 2024

Rule for emergency aid bill adopted with Democratic support