Supreme Court wrestles with Trump’s ‘Remain in Mexico’ policy

The Supreme Court on Tuesday grappled with the Biden administration’s bid to break with a Trump-era immigration policy requiring asylum-seekers at the southern border to stay in Mexico while their applications are processed.

Over nearly two hours of oral argument, the justices posed tough questions concerning how much discretion the executive branch has over U.S. border enforcement policies and whether Biden’s approach to unwinding his predecessor’s program was lawful.

Trump’s “Remain in Mexico” policy, implemented in 2019, remains in effect despite the conclusion by Biden’s Department of Homeland Security (DHS) that the measure is not in the U.S. national interest. Lower courts, in response to a lawsuit by Texas and Missouri, have blocked DHS’s two attempts to end the policy.

Elizabeth Prelogar, the U.S. solicitor general who argued the case for the Biden administration, told the justices that the federal judge in Texas who ordered the U.S. to continue the policy has effectively handed Mexico “an important point of leverage” in the countries’ bilateral relationship.

“The idea here that there is a single district court in Texas that is mandating those results, that is compelling the executive to engage in those ongoing negotiations [with Mexico], and is doing so under the constant threat of a contempt motion from Texas to supervise our good faith negotiations with Mexico, shows that something has powerfully gone awry here,” Prelogar said. “This is not how our constitutional structure is supposed to operate.”

Members of the court’s three-member liberal minority appeared sympathetic with that view. 

“Mexico can change the conditions that it imposes for consenting any day,” Justice Elena Kagan said to Judd Stone II, who argued the case for Texas. “And the point is that requiring the Secretary to do something like this essentially says to Mexico, ‘It’s all yours you have control.’ I mean, they do have control, you’re putting the Secretary’s immigration decisions in the hands of Mexico.” 

The Trump administration sent more than 70,000 asylum-seekers to Mexico under the policy, formally called the Migrant Protection Protocols (MPP), 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 it was another part of Kacsmaryk’s ruling that received more attention at Tuesday’s argument: his conclusion that federal immigration law generally requires asylum-seekers at the southern border either be detained or returned to Mexico.

The judge also ruled that while U.S. immigration officials may release certain noncitizens into the country while they await processing, that authority is limited and allowed “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

Stone, the solicitor general of Texas, told the justices that ending the “Remain in Mexico” policy would lead to a “systemic violation” of the federal immigration law at issue. He argued that because the U.S. lacks sufficient space in its detention facilities, rescinding the Trump-era policy would leave no other option but to release noncitizens into the country en masse.

“That’s precisely the kind of systemic violation of law that, even if MPP would not altogether alleviate, it certainly would at least reduce,” he told the justices. “The United States is required to attempt to comply, even in the face of limited resources, as best it can with the resources it’s been appropriated.”

Another issue in Tuesday’s argument concerned the lawfulness of the Biden administration’s efforts to end the Trump-era policy.

The ruling last August by Kacsmaryk, the Trump-appointed federal judge in Texas, ordered the “Remain in Mexico” policy to remain in place until the Biden administration undertook a deeper analysis as part of its rescission.

In response, the DHS reviewed the program, leading Mayorkas in October to again order its termination. But the judge — later affirmed by a federal appeals court — determined the review could not come amid ongoing litigation, rendering DHS’s second order ineffective.

Justice Brett Kavanaugh, in a question to Prelogar, asked whether DHS’s October memorandum had adequately weighed the views of GOP-led states that expressed concerns about costs associated with illegal immigration. Led by Indiana, 19 Republican-led states filed an amicus brief that credited the “Remain in Mexico” policy with reducing costs related to education, health care and various government assistance.

“Do you think the memo sufficiently grapples with what the 19 states’ amicus brief asserts with respect to the costs to the states and to the people in the United States in terms of increased expenditures?” Kavanaugh asked Prelogar.

—Updated at 2:07 p.m.