U.S. Supreme Court justices on Tuesday considered whether to let President Joe Biden rescind a hardline immigration policy begun under his predecessor Donald Trump that forced tens of thousands of migrants to stay in Mexico to await U.S. hearings on their asylum claims.
The justices heard nearly two hours of oral arguments in a Biden administration appeal of a lower court ruling that reinstated Trump’s “remain in Mexico” policy after the Republican-led states of Texas and Missouri sued to maintain the program. Biden suspended the policy, which changed longstanding U.S. practice, shortly after taking office last year.
Some of the conservative justices, who hold a 6-3 majority on the court, questioned the extent of the administration’s discretion to release migrants into the United States, but also Texas’s use of the courts to constrain the U.S. government in an area over which typically there is broad federal authority.
Conservative Chief Justice John Roberts said the Biden administration’s view of the law seems to have “no limit” on the number of people who can be released. Roberts also told Texas Solicitor General Judd Stone that it seemed a “bit much” for Texas to “substitute itself” for the federal government to determine the best way to comply with U.S. immigration law.
Trump’s administration adopted the policy, formally known as the “Migrant Protection Protocols,” in response to an increase in migration along the U.S.-Mexican border in 2018. The policy prevented certain non-Mexican migrants, including asylum seekers fearing persecution in their home countries, from being released into the United States to await immigration proceedings, instead returning them to Mexico.
The dispute centers on how much discretion the Supreme Court, which has a 6-3 conservative majority, thinks Biden and his administration have to change course on immigration policy.
In its appeal to the justices, Biden’s administration said it is being “forced to reinstate and indefinitely continue a controversial policy” that exposes migrants to safety risks, harms relations with Mexico and is not the best tool for deterring illegal immigration.
The administration also said that the lower courts are unacceptably interfering with the historically broad authority that U.S. presidents have held over immigration and foreign affairs — a principle that the Supreme Court has long endorsed including in cases when Trump was president.
At issue in the case is the meaning of a provision of a 1996 U.S. immigration law that says U.S. officials “may return” certain immigrants to Mexican territory pending immigration proceedings. Biden’s administration said the provision is “unmistakably” discretionary and that the lower court’s decision means that every presidential administration “has been in open and systemic violation” of the law since it was created.
Administrations prior to Trump’s presidency had used the provision on a limited basis. For migrants who do not pose a security risk, immigration law separately allows their release into the United States pending a hearing, a practice that officials have followed for decades.
Roughly 68,000 people fell under the “remain in Mexico” policy from the time it took effect in 2019 until Biden suspended it in 2021.
Biden’s fellow Democrats and immigration advocates criticized the Trump policy, saying migrants stuck in Mexican border cities have faced kidnappings and other dangers.
The number of migrants caught crossing the U.S.-Mexico border has reached record highs recently. Republicans have criticized Biden’s immigration policies and contend that the “remain in Mexico” policy effectively deterred unlawful migration.
Texas and Missouri challenged the Biden administration’s move to scrap the policy, including a memo terminating the program issued last June.
After a federal judge reinstated the program, the Supreme Court last August refused a Biden administration request to block that ruling while the government pursued an appeal.
The New Orleans-based 5th U.S. Circuit Court of Appeals ruled in December that because the government does not have the capacity to detain all migrants who are not eligible for admission pending a hearing, it must maintain “remain in Mexico.”