WASHINGTON, D.C. (Nexstar/AP) — The United States Supreme Court on Tuesday questioned lower-court orders that have blocked the Biden administration from ending former President Donald Trump’s signature “Remain in Mexico” immigration policy.
The Trump administration’s program, formally known as the Migrant Protection Protocols (MPP), requires people seeking asylum at the southern border to wait in Mexico while their claims are pending.
In Biden v. Texas, justices weighed whether the Biden administration has merits in ending the policy and is in compliance with a federal law. President Joe Biden paused “Remain in Mexico” on his first day in office. A judge forced the president to reinstate it in December.
The heart of the legal fight is whether, with far less detention capacity than needed, immigration authorities must send people to Mexico or if they have the discretion under federal law to release asylum-seekers into the United States while asylum-seekers await their hearings.
In nearly two hours of arguments, both conservative and liberal justices suggested the court might allow the Biden administration to end the “Remain in Mexico” policy.
Solicitor General Elizabeth Prelogar, Biden’s top Supreme Court lawyer, told the justices the law does not contain a provision requiring migrants to be returned to Mexico and that there is a “significant public benefit” to releasing migrants who pass criminal background and other checks into the U.S., keeping detention beds free for more dangerous people.
Justices Amy Coney Barrett and Brett Kavanaugh, at least one of whom the administration needs to win the case, suggested that the administration had a better argument than the states.
“You lose, right, if the government is right about what significant public interest is,” Barrett said in an exchange with Texas Solicitor General Judd Stone II.
Several justices also picked up on Prelogar’s point that no administration, including Trump’s, fully complied with the requirement to make migrants wait in Mexico.
If the states are reading the law correctly, Justice Clarence Thomas asked, “Wouldn’t it be odd for Congress to leave in place a statute that’s impossible to comply with?”
Justice Elena Kagan was among members of the court who wondered whether the lower courts were dipping impermissibly into international relations since reinstating the program depends on Mexico’s willingness to accept the migrants and close coordination between the countries.
“What are we supposed to do, drive truckloads of people to Mexico and leave them in Mexico?” Kagan asked Stone.
Justice Samuel Alito appeared to be the strongest voice on the states’ side, questioning the administration’s assertion that it assesses migrants on a case-by-case basis before releasing them.
Border agents stopped migrants 221,000 times in March 2022 and nearly 66,000 migrants were released in the United States, according to a government court filing.
From late Januart 2019 until Biden halted the program, nearly 70,000 people were shuttled back to Mexico. Cities of tents could be seen near ports of entry on the Mexico side of the border, sparking outrage from civil rights groups who say the policy led to dangerous conditions for asylum-seekers waiting to enter the U.S.
At the time, President Biden noted these conditions and the complications the policy created with Mexico relations, as well as the difficulty immigrants faced in getting legal help from the U.S.
After Biden’s suspension of the program, Homeland Security Secretary Alejandro Mayorkas ended it in June 2021. In October 2021, DHS produced additional justifications for the policy’s demise, to no avail in the courts.
The Biden administration’s attempts to stop the program were blocked after a lawsuit was filed by the attorneys general of Texas and Missouri, reinstating the program. Lower courts found the president lacked legal basis for ending the policy, prompting the administration’s appeal to the Supreme Court.
Without enough detention facilities, Texas argues the administration’s only option is to make migrants wait in Mexico for asylum hearings in the U.S.
It comes as another signature Trump-era policy is set to end next month. On May 23, the Biden administration will lift Title 42, a pandemic-related public health policy that expelled migrants back to their home country, even asylum-seekers.
The decision to lift Title 42 is being challenged by nearly two dozen states, including Texas. Attorney General Ken Paxton announced a lawsuit last Friday.
On Monday, a federal judge in Louisiana announced he will temporarily block the Biden administration’s plans for ending Title 42 and sided with Republican attorneys general like Texas, which asked the courts to force the White House to temporarily keep the policy in place.
A decision in Biden v. Texas, 21-954, is expected by late June.
The Associated Press contributed to this report.