President Biden’s top lawyer at the Supreme Court told the justices Tuesday that requiring the administration to retain a controversial Trump-era immigration policy would further entangle the judiciary in immigration and foreign policy decisions reserved for the political branches.
“The idea here that there is a single district court in Texas that is mandating those results … shows that something has powerfully gone awry here,” Prelogar told the justices. “This is not how our constitutional structure is supposed to operate.”
After nearly two hours of arguments, it was unclear whether the justices would agree. They struggled with what seemed like conflicting provisions of federal immigration law.
The justices were considering the Migrant Protection Protocols (MPP) put in place by the Trump administration. Better known as the “Remain in Mexico” policy, it requires some asylum seekers who enter the country illegally to return to Mexico while they await a hearing. President Donald Trump said the program was necessary to curb what his administration characterized as a flood of meritless asylum claims by migrants seeking to be released into the United States.
Shortly after taking office in January, Biden said the administration would not continue enrolling migrants in the MPP and ordered a review. He and immigration rights groups said the policy was subjecting asylum seekers to dangerous conditions such as rape and torture, and complicating their legal proceedings in the United States. The program’s benefits, Prelogar said, were “outweighed by its domestic, humanitarian, and foreign policy costs.”
But U.S. District Judge Matthew Kacsmaryk said last year that the Biden administration did not adequately explain its reasons for canceling the policy and that its new procedures violated federal immigration law. A federal appeals court upheld his decision and the Supreme Court last summer refused the administration’s request to intervene. Instead, it scheduled Tuesday’s expedited hearing.
In the meantime, the Biden administration reopened negotiations with Mexico and reimplemented the MPP.
Kacsmaryk said federal law requires that the administration detain all who enter the country illegally, but Congress has never provided enough funding to do so. The only alternative, the judge reasoned, is to return them to Mexico.
Prelogar said “no member of Congress or executive branch official or anyone else” has made such a claim. “On this reading, every presidential administration, in an unbroken line for the past quarter century, has been in open violation” of federal law, she said.
Much of Tuesday’s debate at the Supreme Court centered on a third option, which allows the government to parole individuals into the country on a case-by-case basis when there are “urgent humanitarian reasons or significant public benefit.”
Several justices wondered why there was a benefit to releasing undocumented immigrants into the country.
Prelogar said that doing so made sense when Congress does not fund full detention. The Department of Homeland Security can find “that there is a significant public benefit from releasing a low-priority individual who’s not a flight risk, who doesn’t have a criminal history, if that would preserve a bed space for someone who’s a higher priority under our detention policies.”
Justice Samuel A. Alito Jr. suggested the department’s review was less than stringent. “You’ve got a little checklist and you’re going … you know, boom, boom, boom, and that’s how you can process,” Alito said. “Maybe you’re right, but … that’s what you think Congress meant by a case-by-case determination?”
Prelogar said the review was far more extensive than that.
Texas and Missouri sued to have the Trump policy retained, pointing to the costs they say they suffer because of illegal immigration. They have been successful each step of the way, but Texas Solicitor General Judd Stone II faced tough questions even from conservative justices who had refused the Biden administration’s request last summer to put the lower courts’ rulings on hold.
Under questioning from Justice Clarence Thomas, for instance, Stone acknowledged Prelogar’s point that no administration had lived up to the requirements of the law as the lower courts saw them.
Chief Justice John G. Roberts Jr. said that if Congress hasn’t provided enough money to detain everyone and the Mexican government is limiting the number of people it will accept, “what good do you think will come from a requirement that the government keep MPP in place?”
Roberts didn’t appear satisfied with Stone’s reply that it would mean fewer violations of the law.
Stone also faced skeptical questions from Justices Brett M. Kavanaugh and Amy Coney Barrett.
If Prelogar is correct in her view of the “significant public benefit” of releasing some detainees, Barrett told Stone, “you lose.”
Justice Elena Kagan said Stone’s defense of the lower courts’ rulings put the United States in an untenable position with Mexico.
If the choice is either to detain everyone, which the federal government can’t do, or return asylum seekers to Mexico, “it puts the United States essentially at the mercy of Mexico,” Kagan said.
“If we come out your way, well, Mexico has all the leverage in the world to say: Well, you want to do that? You want to comply with the court’s order? Here are 20 things that you need to do for us.”
Biden officials say they have been making a good-faith effort to comply with the lower courts, but their version of MPP has had little resemblance to the Trump administration’s aggressive implementation, when authorities were turning back more than 10,000 asylum seekers per month.
Last month the Biden administration used MPP to return 900 asylum seekers to Mexico, up from 487 in February and 209 in January, according to the government’s most recent report. That amounted to less than 1 percent of the more than 109,000 border-crossers the Biden administration returned to Mexico or their home countries under the pandemic-era emergency border restrictions known as Title 42.
Immigration arrests along the Mexico border reached their highest levels in at least two decades last month, U.S. Customs and Border Protection data show. The Biden administration is preparing to lift Title 42 restrictions May 23 and expects illegal border crossings to increase further. Several Republican-led states are suing to keep the Title 42 restrictions in place.
Biden officials say they will continue to increase the number of asylum seekers returned to Mexico under MPP while awaiting the Supreme Court’s decision. But the volume of returns under MPP is likely to remain far smaller than the scale of turnbacks under Title 42.
Mexican authorities have placed tighter limits on the number of non-Mexican asylum seekers they are willing to accept from the United States, citing insufficient shelter capacity. And the Biden administration has added numerous exemptions of its own, insisting it will not send back family groups, individuals with health issues and others it considers vulnerable on the basis of their gender or sexual identity.
The relatively few asylum seekers Biden officials have placed in MPP so far are overwhelmingly from countries whose strained relations with the United States makes deportations difficult. Nicaraguan asylum seekers account for 73 percent of all MPP enrollments under Biden, according to the latest U.S. data, followed by Venezuelans (8 percent) and Cubans (7 percent).
While some Biden officials have extolled MPP in private as a potentially useful border management tool to reduce record numbers of immigration arrests, Homeland Security Secretary Alejandro Mayorkas has told lawmakers he believes the program is ineffective and creates a burden for U.S. agencies and courts.
The case is Biden v. Texas.