On Tuesday morning, the Supreme Court will hear oral argument in Biden v. Texas, in which the justices will decide whether the Biden administration must continue to enforce a Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court.
The justices have had extensive experience with the policy, formally known as the Migrant Protection Protocols, since the Trump administration announced it in 2018. In March 2020, the court allowed the Trump administration to begin enforcing the policy after a federal district judge in California blocked it. In October 2020, the Supreme Court agreed to review a ruling by the U.S. Court of Appeals for the 9th Circuit holding that the policy was likely inconsistent with both federal immigration law and international law, but the justices dismissed that case in June 2021 after the Biden administration ended the policy – or, at least, tried to end it.
Critics of the policy say that it forces asylum seekers to reside in dangerous and unsanitary camps in Mexican border towns. Supporters say that it prevents large numbers of noncitizens from entering the United States based on dubious asylum claims.
The latest round of legal wrangling began when Texas and Missouri challenged the Biden administration’s initial effort to rescind the policy. That effort, they contended, violated both federal immigration law and the federal law governing the procedures that federal agencies must follow.
U.S. District Judge Matthew Kacsmaryk agreed with the states and ordered the Biden administration to reinstate the policy. After the U.S. Court of Appeals for the 5th Circuit declined to block Kacsmaryk’s ruling, the Biden administration went to the Supreme Court last August, seeking emergency relief. Over the objection of Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the court refused to step in and put Kacsmaryk’s order on hold. As a result, the Biden administration was required to resume enforcement of the policy while litigation continued in the lower courts.
On Oct. 29, the Department of Homeland Security issued a new decision ending the policy, supported by a 38-page memorandum that explained that decision. The memorandum acknowledged the arguments for retaining the program, but it concluded that those “benefits do not justify the costs.” The 5th Circuit, however, upheld a district-court order requiring the Biden administration to continue the policy, holding that the explanation initially provided in June 2021 for ending the policy had been inadequate.
The Biden administration returned to the Supreme Court in late December, asking the justices to decide whether federal immigration law requires the administration to maintain the policy and whether the Oct. 29 decision to end the program has any legal effect. And because of the “importance of the case and the magnitude of the nationwide injunction’s ongoing interference with the Executive Branch’s conduct of immigration and foreign policy,” the Biden administration urged the justices to decide the case during the 2021-22 term – which the court agreed in February to do, fast-tracking the case for oral argument.
The administration’s arguments
The Biden administration tells the justices that the 5th Circuit “relied on novel and erroneous interpretations of” federal law “to compel DHS to maintain in perpetuity a discretionary border-management program that the politically accountable Executive Branch has twice determined to be contrary to the interests of the United States.” As an initial matter, the administration argues, the court of appeals was wrong when it held that federal immigration law requires DHS to return asylum seekers to Mexico whenever it cannot detain them. The law at the center of this case specifically provides that DHS “may” return asylum seekers to Mexico or Canada while they wait for a hearing, which gives DHS discretion.
Moreover, the Biden administration contends, when Congress passed the law, it was fully aware that the federal government did not have the capacity to detain even a fraction of the noncitizens who try to enter the United States every year, but there is no indication that it nonetheless intended to require DHS to “return hundreds of thousands of land-arriving noncitizens to Mexico or Canada due to a lack of detention space.” But if the 5th Circuit’s interpretation of the law were accurate, the administration adds, every presidential administration since 1996 – including the Trump administration before it adopted MPP – would have been in violation of the law.
The 5th Circuit’s reading of the law also impinges on the executive branch’s powers under the Constitution to manage the border and foreign policy, the administration argues. It requires the United States to send migrants into Mexico, which in turn requires the consent of (and, more generally, cooperation from) the Mexican government.
The court of appeals is also wrong, the Biden administration continues, to hold that the Oct. 29 memorandum terminating MPP has no legal effect and therefore does not, as the district court directed, terminate MPP in compliance with the federal laws governing administrative agencies. The Supreme Court has explained, the administration says, that when a court concludes that an agency’s explanation for an action is inadequate, the agency “may either elaborate on its prior reasons or issue a new decision.” In this case, the administration reasons, after taking a new look at the issue, DHS issued a new decision that offered new reasons for the decision to end MPP. Moreover, the administration notes, Secretary of Homeland Security Alejandro Mayorkas made clear exactly what he was doing, saying in his Oct. 29 decision: “I am hereby terminating MPP. Effective immediately, I hereby supersede and rescind the June 1 memorandum.”
The fact that DHS had announced on Sept. 29 that it planned to issue a new memorandum ending MPP does not mean that it had prejudged the issue, the administration emphasizes. By the time DHS made the announcement, it had already spent weeks reconsidering the question – and, unlike the Oct. 29 memorandum, its announcement was not in any event a final decision.
Arguments of Texas and Missouri
Texas and Missouri counter that the Biden administration cannot terminate MPP because doing so would violate its obligations under federal immigration law. Even if the federal government does not have the capacity to hold all asylum seekers who arrive at the U.S. border, the states write, Congress has given DHS three options that allow it to comply with federal law: DHS can detain the asylum seekers; it can decide whether to temporarily allow them into the United States on a case-by-case basis; or, for asylum seekers who arrived by land, it can return them to the countries from which they tried to enter the United States. But DHS must choose one of those options, the states say. Thus, even though federal immigration law gives DHS the discretion to decide whether to return asylum seekers to Mexico or Canada while they wait for a hearing, the states reason, that discretion is merely one of DHS’ choices.
Ending MPP, the states say, does not fall into any of those categories. Instead, DHS seeks “the power to release classes of aliens into the United States en masse.” Moreover, the states add, for nearly a century, “detention has been the strong norm”; releasing asylum seekers into the United States to wait for their hearing has been “the exception.”
The states dismiss the Biden administration’s suggestion that requiring DHS to reinstate MPP would interfere with U.S. foreign relations, particularly with Mexico. The states stress that Congress also has a role in foreign policy, as well as the power to pass immigration laws. And in any event, the states note, the government’s position on the impact of MPP has been inconsistent: DHS (under the Trump administration) had previously determined that ending MPP would interfere with U.S. foreign relations.
The states urge the justices to uphold the 5th Circuit’s ruling that Oct. 29 memorandum has no legal effect, so that DHS still has not properly ended the policy. But even if the justices were to consider the Oct. 29 memorandum, the states contend, it was simply an after-the-fact effort by DHS to justify its June decision to end MPP, without any support in the record to show that DHS engaged in an “authentic reconsideration” before making that determination. “An ordinary onlooker,” the states suggest, “would no longer assume that” DHS “hewed to the administrative straight and narrow.” Rather, the states conclude, DHS’ “conduct demonstrates that the administration has always intended to terminate MPP, regardless of any impediments to that outcome.”
Arguments of other states and interest groups
In addition to Texas and Missouri, 36 other states and the District of Columbia have also weighed in, in two opposing “friend of the court” briefs. Led by Illinois, 17 states with Democratic attorneys general and the District tell the court that they “welcome immigrants into the communities because immigrants contribute to their economies and their civic life.” If the 5th Circuit’s decision is upheld, they warn, it would “acutely harm” both the states and the members of their communities who have relied on programs allowing asylum seekers to be released into the United States while they wait for a hearing.
Indiana and 18 other states, by contrast, decry the “significant costs” that illegal immigration imposes on them – everything from education to health care, along with the “human costs to vulnerable populations from human trafficking and drug smuggling.” They urge the justices to leave the 5th Circuit’s ruling in place, citing their “strong interest in ensuring that, before ending” MPP, DHS “properly considers (and accounts for) the consequences for states and their citizens, which did not occur here.”
The district court’s order requiring the Biden administration to continue the policy applies throughout the country. Noting that two justices – Clarence Thomas and Neil Gorsuch – have suggested that such injunctions, which have become increasingly popular in recent years, “may be unconstitutional,” the Center for Immigration Law and Policy at UCLA School of Law argues that the injunction is “out of all proportion to the limited, thus-far-unrealized economic harms alleged by” Texas and Missouri. Even if the Supreme Court ultimately agrees with the merits of Texas and Missouri’s claims, the center contends, it should make clear that its ruling would only prohibit the Biden administration from terminating MPP in Texas and Missouri. Tuesday’s argument should provide more insight into the justices’ thinking on nationwide injunctions and the other arguments made by the parties and their supporters.
This post is also published on SCOTUSblog.