Some court conservatives posed tough questions to the administration and suggested sympathy for lower court views that went against President Joe Biden.
Judge Samuel Alito at one point suggested that lower courts were correct in considering that the Trump program may be necessary to comply with immigration law. And Judge Clarence Thomas has suggested the government has limited discretion to parole those who arrive.
But Chief Justice John Roberts expressed sympathy for the government’s argument that it wants to end a program that had been proposed by the previous administration. He seemed perplexed as to how to handle the opinions of lower courts that interpreted immigration law to require the program – or a similar program.
“What do we have to do?” he asked.
The three court liberals, meanwhile, backed the Biden administration and argued that demanding the program stay in place would have serious diplomatic consequences. It was unclear at the end of the arguments whether there were five votes in favor of Biden’s position.
Judge Elena Kagan worried about diplomatic concerns if the court demanded that the Biden administration continue to implement an agenda so dependent on cooperation from Mexico. She said such a move would put the United States at the “mercy of Mexico” and that it could change its mind at any time to change the terms.
When a Texas lawyer defending the Trump-era agenda suggested diplomatic relations wouldn’t be at stake, Kagan replied, “What are we supposed to do? Drive truckloads of people into Mexico without negotiating?”
Under the unprecedented program launched in 2019, the Department of Homeland Security returned some non-Mexican citizens who entered the United States to Mexico — instead of detaining or releasing them in the United States — while their immigration process was taking place.
Critics call the policy inhumane and say it exposes asylum seekers with credible claims to dangerous and squalid conditions. Migrants subject to the program – officially known as the Migrant Protection Protocols – resided in makeshift camps along Mexico’s northern border.
Tuesday’s affair and the political fallout from the Biden administration’s efforts to end Title 42 next month have again shed light on the politically precarious position of the White House and the uphill battles the White House faces. before the courts.
While Biden himself pledged to end the “stay in Mexico” program when he took office, he was blocked by federal courts.
The case raises questions not only about immigration law, but also about a president’s control over politics and his diplomatic relations with neighboring countries.
“A new president will not have the power to implement his own agenda, and millions of asylum seekers will be exposed to exploitation and human trafficking while being denied their due process rights. “, said Sabrina Talukder, a professor at Loyola Law School, who signed a brief in support of the Biden administration, told CNN.
Initially, Biden’s Department of Homeland Security issued a memorandum ending the program last June. But after two states – Texas and Missouri – challenged, a district judge overturned the memo and ordered the policy reinstated.
The court said the administration failed to adequately explain its decision-making process in its attempt to terminate the program in violation of the federal Administrative Procedure Act. Going further, the court also interpreted immigration law to require DHS to return certain non-nationals to Mexico when it lacks sufficient funds to detain them on U.S. soil, despite the long-standing discretion that allows the authorities to decide who to release or detain.
“The courts below in this case have enacted unprecedented limits on the ability of federal agencies to change policy and make new rulings in response to adverse court rulings,” said Andrew J. Pincus, attorney at Mayer Brown. LLP, in an interview.
“If upheld by the court, they would significantly restrict agency decision-making across government,” he added.
As of April 17, more than 2,300 migrants had been returned to Mexico under the “Remain in Mexico” policy since its renewal late last year, according to the International Organization for Migration.
Interpretation of immigration law
The judges focused on different provisions of the immigration law. One section states that the Department of Homeland Security “shall” detain noncitizens pending immigration processing, while another provision states that the secretary “may remove” certain noncitizens.
General Counsel Elizabeth Prelogar told judges on Tuesday that lower courts had relied on misinterpretations of federal law to compel DHS to maintain a program the administration has twice tried to end. She said the Biden administration had the legal authority to end the program and had determined that the benefits were “outweighed by its domestic humanitarian and foreign policy costs.”
She said the Homeland Security Secretary “should be allowed to finally put his policy decision into effect” and that the breadth of opinions in the lower courts suggested something had “gone seriously wrong”.
Prelogar said the law provides the government with alternative options for processing applicants, noting that some may be admitted “on parole” and others may be placed on an expedited removal process. She noted that in fiscal year 2021, DHS processed more than 671,000 migrants through traditional immigration protocols, an average of more than 55,000 per month.
She also argued that the lower court’s opinion would have “dramatic implications for foreign relations” because it requires the executive to send those from third countries to Mexico – the territory of a foreign ruler.
Texas Attorney General Ken Paxton, joined by Missouri Attorney General Eric S. Schmitt, urged the Supreme Court to uphold the lower court opinions. He said the Trump administration launched the program because “tens of thousands of foreigners illegally cross the nation’s southern border every month.”