On the second-to-last day of oral arguments for the current Supreme Court term, the justices addressed a challenge to the Trump administration’s Migrant Protection Protocols (MPP), better known as the “Remain in Mexico” policy. The MPP, for those privileged enough to have forgotten about it, instructed the Department of Homeland Security to catch noncitizens, many of whom are seeking asylum in the United States, and send them to Mexico (or Canada, theoretically) while they wait for their legal status or asylum claims to be adjudicated. These are people who largely did not come from Mexico but came through it on their way to the United States, so the name “Remain in Mexico” is itself a piece of misinformation created by the Trump administration and adopted by the American media to downplay the forced relocation engaged in by DHS. Forced relocation is a violation of international best practices on how asylum seekers should be treated by the global community.
The Biden administration put an end to the MPP, but the state of Texas sued to force the administration to continue sending noncitizens to Mexico.
I expected Texas to win this case because, thus far, the Supreme Court has adopted a stance that suggests Trump’s actions by executive order are generally okay, while everything Biden tries to undo through executive order is suspect. But in this case, I think the court will rule for the Biden administration. The conservative-controlled court finally seemed interested in the practicality of all this Trump-fueled racism towards noncitizens, instead of simply being hell-bent on protecting the government’s right to be bigoted against people who cross the southern border.
Indeed, a threshold issue that could have really helped Texas’s case was pretty much dismissed out of hand by the court. Texas argued that the Biden administration’s rollback of MPP was illegally “arbitrary and capricious” under the Administrative Procedures Act. This is the same argument that states successfully deployed against Trump’s cancellation of the Deferred Actions for Childhood Arrivals (DACA) program a few years ago. I expected the conservatives on the court to be eager to throw this ruling back in the face of the Biden administration, but they were not. Solicitor General Elizabeth Prelogar, arguing on behalf of the Biden administration, quickly went through all of the proper administrative steps the DHS, under Secretary Alejandro Mayorkas, took before repealing MPP—steps that Trump did not take when repealing DACA—and the court seemed fine with it. She didn’t receive any real pushback from any of the conservatives. It’s just another indication that the Trump team was shoddy and failed to take even the most basic steps to follow the rules of lawful government.
With that “gotcha” potential taken care of, the only real issue at oral arguments was a practical question about the interpretation of a provision of the Immigration and Nationality Act as it pertains to people who come to this country without proper documentation (8 U.S.C. 1225). At issue is a part of that statute that says the government “shall” detain people pending a final determination of their asylum case. But a different part of the statute provides for paroling certain detainees in the United States, and a still different part says the government “may” send people who arrive from a foreign “contiguous territory” (like Mexico) back to that country.
Given these options, conservatives on the court made clear that they feel the preferred solution is to jail people who arrive in the country without documentation. That’s what they think Congress wanted. The problem is that Congress, in its infinite wisdom, has not provided nearly enough resources to humanely incarcerate all of the asylum seekers who cross the border. Congress hasn’t even come close to providing enough bed space. Incarcerating everybody just can’t be done, and even a conservative like Chief Justice John Roberts had to admit at the outset of the hearing that jailing everybody is simply not something the government can do even if the court orders them to do it.
Since it can’t jail everybody, the Biden administration has opted to incarcerate the most “dangerous” migrants—those with criminal records or those deemed a flight risk and things of that nature—while paroling others into the United States. As for the third option of returning would-be immigrants to Mexico, the administration has stopped aggressively pursuing that approach by repealing the MPP.
Texas argued that this cannot stand. The state’s entire argument was that the statutory language that says the government “may” send people back to Mexico must be interpreted as “shall” return people to Mexico, because the government cannot incarcerate everybody like it’s supposed to.
And the conservatives on the court simply didn’t buy it. The court was reluctant to convert the clear language in the statute that gives the Biden administration an option of sending people to Mexico into a decree just because there isn’t enough space in America to jail everybody. Roberts thought that was impractical, while alleged attempted rapist Brett Kavanaugh and Amy Coney Barrett both suggested that the administration, not the state of Texas, gets to decide what is in the best interests of the American people once it runs out of bed space. At one point Barrett warned that if Texas agrees that Biden, not Texas, gets to decide what is in the public interest, then “you lose.”
I counted at least six votes to support the Biden administration’s decision to end the MPP (the three remaining liberals, plus Roberts, Kavanaugh, and Barrett), and I could see there being a seventh. Neil Gorsuch was pretty quiet, asked only one question, and has a thing about interpreting words like “shall” and “may” literally. Even Clarence Thomas seemed to understand the Biden administration’s position (though I also suspect his wife just won’t let him vote for Biden on this issue in the end). Only Justice Samuel Alito seemed to remain committed to ordering the government to do something it couldn’t physically do and making that their problem instead of his.
It is, of course, a bit of a pyrrhic victory. “Remain in Mexico” violates human rights and, should it be struck down, it will have taken a long time since the human rights violator in chief was ousted for this particularly cruel policy to be shut down. And if a Republican takes back the White House in 2024, it will surely be reinstated. Moreover, the Biden administration still incarcerates a lot of peaceful asylum seekers who are a danger to no one, and most of the hearing was about whether it could somehow incarcerate or otherwise criminalize these people even more for daring to make it all the way to the United States. Only Justices Sonia Sotomayor and Elena Kagan even mentioned the moral tragedy of this policy.
But for now, this will have to do. Until Congress passes comprehensive immigration reform, until the Biden administration articulates a vision that is something higher than the absolute lowest bar for a halfway decent nation, this is the best we can hope for. The Supreme Court is unlikely to force the Biden administration to engage in flagrant human rights violations. Yay.