Supreme Court to revisit Trump’s ‘Remain in Mexico’ policy

The Supreme Court on Tuesday will hear arguments over the Biden administration’s effort to end a controversial Trump-era immigration measure that requires asylum-seekers at the southern border to stay in Mexico while their applications are processed.

The dispute will determine whether the Biden administration must continue the policy — which remains in effect — despite the Department of Homeland Security’s (DHS) conclusion that the measure is not in the United States’ national interest. 

More broadly, the case concerns how much discretion the executive branch has in managing U.S. border enforcement policies, said Kevin Johnson, an immigration law expert and professor at the University of California, Davis.

“Historically, there’s been a great deal of deference given to the president and the administration when it comes to how to enforce the borders,” he said, noting that new questions arose under former President Trump about the scope of this authority. “And now we’ve got a new administration that wants to unravel or dismantle some of the Trump administration’s policies, and the question is how and what discretion does the executive branch have to do that.”

Trump’s “Remain in Mexico” policy, implemented in 2019, blocked migrants at the Mexican border from entering the U.S. to apply for asylum, leaving tens of thousands of people awaiting their fates in Mexico and subjecting them to potential persecution and abuse.

According to a coalition of immigration rights advocates, the policy contributes to a “humanitarian crisis” at the southwest border.

“There is no way to continue the Remain in Mexico program without subjecting migrants to needless violence, suffering and unfair process,” reads an amicus brief from the coalition, led by groups that include the Justice Action Center.

The Trump administration sent more than 70,000 asylum-seekers to Mexico under the policy, formally called the Migrant Protection Protocols, a departure from a previous practice of generally allowing those fleeing violence to cross the border and apply for asylum within the U.S.

Early into Biden’s White House tenure, his administration sought to formally end the Trump-era policy. DHS Secretary Alejandro Mayorkas issued a memorandum in June 2021 ordering an end to the program, which prompted a legal challenge by the attorneys general of Texas and Missouri.

Texas-based U.S. District Judge Matthew Kacsmaryk, a Trump appointee, ruled against the Biden administration. He held that the administration had failed to provide an adequate justification and follow proper procedures in effectuating its rescission.

But another part of Kacsmaryk’s ruling may overshadow that during oral arguments: his agreement with the Trump administration that federal immigration law requires asylum-seekers either be detained or returned to Mexico.

Johnson, of the University of California, Davis, said such an interpretation contradicts how every president prior to Trump in the last 20 years has applied the statute.

“I think that’s a tough argument to make given the language of the statute, which seems to give the president discretion to decide about returning people to Mexico,” he said.

In Kacsmaryk’s ruling last August, he ordered that the Trump-era policy would have to remain in place until the Biden administration undergoes a lengthy administrative procedure to overturn it.

The DHS undertook an additional review of the program, leading Mayorkas in October to again order its termination. But a federal appeals court upheld the district court ruling, rendering DHS’s second order ineffective and prompting the Biden administration’s appeal to the Supreme Court.

“DHS has thus been forced to reinstate and continue implementing indefinitely a controversial policy that the Secretary has twice determined is not in the interests of the United States,” the administration wrote in its December petition for appeal.

Johnson said asylum-seekers face difficult living conditions when required to stay in Mexico while their claims are processed in the U.S.

“Some would say that the migrant protection protocol really was just designed to add an extra deterrent to seeking asylum and having a hearing, and to punish, in some way, the migrants by forcing them to live in what some would say is squalor in Mexico where there aren’t facilities to house them,” he said.

Judd Stone II, the solicitor general of Texas, will argue the case Tuesday on behalf of Texas and Missouri, the original states to contest the Biden administration’s move. Those challengers now have the backing of 19 other GOP-led states, led by Indiana, that filed an amicus brief in the case.

“In recent years, States have borne costs related to education, healthcare, and other government-assistance programs serving the rising influx of illegal aliens released into the country — not to mention the human costs to vulnerable populations resulting from human trafficking and drug smuggling (particularly dangerous drugs like fentanyl) across the border,” they wrote. “(Migrant Protection Protocols) proved highly successful at staunching the flow of illegal aliens across the border.”