Supreme Court wrestles with 'remain in Mexico' policy as immigration erupts as midterm issue

Fulfilling a campaign pledge, Biden's Department of Homeland Security rescinded the program in June. Two states sued, asserting the administration didn’t follow the law in unwinding the program.

John Fritze
  • Trump implemented the policy in 2019, requiring migrants to wait in Mexico as their claims are reviewed.
  • Biden sought to unwind the policy last year, asserting it had created a crisis on the border.
  • Two states say the law requires Biden to send migrants to Mexico if officials can't detain them.

WASHINGTON – The Supreme Court appeared divided Tuesday over President Joe Biden's effort to end a Trump-era immigration policy requiring migrants seeking asylum to remain in Mexico while their cases are reviewed, a program that critics say has contributed to a humanitarian crisis on the nation's southern border. 

In nearly two hours of spirited argument, the high court's conservative majority wrestled with whether the Biden administration had adequately considered the program's benefits, the limits of the government's authority to release migrants into the United States and the significance of Congress requiring officials to detain immigrants but then declining to provide the federal funding needed to meet that obligation.

"You're in a position where the facts have sort of overtaken the law," Chief Justice John Roberts told Solicitor General Elizabeth Prelogar, who was representing the Biden administration before the court. "But in that situation, what are we supposed to do? It's still our job to say what the law is." 

Several of the justices – especially those in the liberal wing of the court – had tough questions for Texas and Missouri, which sued to stop the Biden administration from ending the controversial program. Even Associate Justice Clarence Thomas, a stalwart conservative, suggested part of the states' interpretation of the law would be "odd."  

The case came to the nation's highest court on an expedited basis and at a time when immigration has surfaced as a significant issue in the fall midterm election. Biden's administration is facing mounting pressure from Republicans and some Democrats for vowing to unwind a related policy next month known as Title 42, in which migrants are rapidly expelled for public health reasons during the COVID-19 pandemic. 

A federal judge in Louisiana said this week that he intends to temporarily block the administration from ending that policy as well.  

Preview:Supreme Court hears challenge about 'remain in Mexico' policy 

Title 42:Biden faces pressure from vulnerable Democrats to delay end to Title 42

The Trump administration implemented the "remain in Mexico" policy, also known as Migrant Protection Protocols, in January 2019 as part of its effort to curb immigration and end what critics call "catch and release." It requires migrants from Central American nations seeking asylum in the U.S. to wait in Mexico for those claims to be reviewed, a process that can take months. By the end of 2020, the government had enrolled 68,000 people in the program, according to court records.

The idea was that the more onerous process would deter people from attempting to enter the country and would limit the number of migrants who make an asylum claim, are released into the United States, and then remain in the country illegally.     

Fulfilling a campaign pledge, Biden's Department of Homeland Security rescinded the program in June. Texas and Missouri sued, asserting the administration didn’t follow the law in unwinding the program in part because it didn’t adequately explain its reasoning for doing so. A district court in Texas sided with the states and the Supreme Court in August declined to put that ruling on hold, forcing Biden to reinstate the program. 

Families live in tents along the border in Mexico as Title 42 and remain in Mexico policies continue on April 9, 2022.

That has put the White House in what administration officials say is an untenable position of either violating a court order or being at Mexico's mercy in negotiations to return migrants to that nation. That's because the United States cannot unilaterally send Central Americans across the border without Mexico's approval. 

"You're putting the secretary's immigration decisions in the hands of Mexico," said Associate Justice Elena Kagan, pressing Texas Solicitor General Judd Stone.

Roberts seemed to sympathize with that point, suggesting it was "a bit much" for Texas to try to "substitute itself" for the judgment of DHS immigration officials. 

Though Biden has reinstated the program, the administration appears to be relying on it far less: As of the end of February, 1,602 individuals were enrolled and 893 had been returned to Mexico, according to recent Department of Homeland Security testimony

Federal law requires DHS to detain migrants while their asylum claims are considered, but Congress hasn’t provided enough money to fulfill the mandate for most migrants. Of the 220,000 encounters border agents had with immigrants on the southwest border in March, DHS had funding for only 32,000 detention beds, Prelogar told the court. 

The government doesn't dispute that it's required by law to detain those immigrants. The question is what is it supposed to do with those people when Congress hasn't provided the money to carry out that requirement? Texas and Missouri say the law demands that most of those people be returned to Mexico. Biden officials counter that the law has no such requirement, and they point out that no prior administration – Republican or Democrat – has interpreted the law that way. 

Instead, the Biden administration winds up paroling thousands of migrants into the United States to await hearings. Prelogar said that arrangement allows officials to prioritize for detention people who are most likely to commit crimes or flee. 

But several of the court's conservative justices said that situation also had downsides. Roberts said that the government's position meant that "there is no limit at all on how many you can release into the United States."  

A decision in the case is expected this summer.