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Supreme Court Sides With Biden In Fight Over Trump’s ‘Remain In Mexico’ Policy


The U.S. Supreme Court ruled that the Biden administration has the authority to skirt congressional requirements for border policy and end the Trump-era Migrant Protection Protocols, which ensured that thousands of illegal immigrants crossing the U.S. border and claiming asylum would have to await the outcome of their court proceedings in Mexico.

In a 5-4 decision released on Thursday, Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Brett Kavanaugh joined Chief Justice John Roberts in finding that President Joe Biden’s attempt to rescind the “remain in Mexico” policy did not violate the Immigration and Nationality Act, which states illegal immigrants apprehended at the border must be detained or sent back to the contiguous foreign territory from which they came, in this case Mexico.

In the majority opinion, Roberts said the INA does not require the administration to either detain illegal immigrants or send them back pending the outcome of their court proceedings, but that it also permits the Department of Homeland Security to grant “parole” to illegal aliens.

The Biden administration, however, has taken an expansive approach to parole, transforming what was supposed to be granted on a “case-by-case basis for urgent humanitarian reasons or significant public benefit” into a policy encompassing all illegal border crossers. Roberts said it is not the high court’s job to “resolve the parties’ arguments” or evaluate “whether the Government is lawfully exercising its parole authorities,” only to determine that “the INA itself does not require the Secretary to continue exercising his discretionary authority under these circumstances.”

Justice Samuel Alito’s dissenting opinion, joined by Justices Clarence Thomas and Neil Gorsuch, argues the opposite, that “Congress offered the Executive two — and only two — alternatives to detention.”

“Due to the huge numbers of aliens who attempt to enter illegally from Mexico, DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible,” writes Alito. “But rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings. This practice violates the clear terms of the law, but the Court looks the other way.”

President Donald Trump first announced the Migrant Protection Protocols in 2018. After facing multiple legal hurdles, the Department of Homeland Security implemented the MPP in 2019.

Art Arthur, a resident fellow at the Center for Immigration Studies, noted in a recent column, “Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.”

When Biden assumed office, he issued an executive order directing Secretary of Homeland Security Alejandro Mayorkas to repeal the MPP. Texas and Missouri sued, leading to the policy’s temporary reinstatement. The Biden administration’s attempts to get a stay of the injunction were declined by both the Fifth Circuit Court and the Supreme Court. Five months after Mayorkas declared a second end to the MPP in October, SCOTUS agreed to grant Biden a writ of certiorari in February.

Thursday’s ruling means the MPP program is dead. However, under Biden, the number of migrants actually enrolled in the program plummeted. Fewer than 3,000 of the 5,014 people enrolled in MPP as of May 2022 were actually sent to Mexico to await the outcome of their immigration proceedings.

When asked how this recent SCOTUS decision will affect the current border crisis, Arthur told The Federalist that he expects questions about an administration’s authority to broadly interpret border policy to go back to the circuit courts.

“The Biden administration, unlike every other administration in history, doesn’t have a policy of deterring illegal migrants,” Arthur said. “…What this is really going to do is, yes it punts it back to the lower courts, but what it really does is it’s going to punt it to the 118th Congress to make some changes.”