Amy Howe

May 3 2022

Court orders additional briefing in dispute over “remain in Mexico” policy

Six days after hearing oral argument in the challenge to the Biden administration’s effort to unwind the “remain in Mexico” immigration policy, the Supreme Court on Monday called for more briefing. In a short order, the justices asked both sides in the dispute to weigh in on technical – but potentially dispositive – issues relating to the court’s power to hear the case.

At last week’s oral argument in Biden v. Texas, the main issues before the justices included whether the government’s efforts to end the policy, formally known as the Migrant Protection Protocols, were consistent with federal immigration law, and whether requiring the Biden administration to continue the policy would interfere with the executive branch’s powers over foreign policy and immigration. But some justices – including Justices Clarence Thomas and Samuel Alito – also questioned U.S. Solicitor General Elizabeth Prelogar about the administration’s argument, made in a footnote in its opening brief, that a provision of federal immigration law barred the lower courts from entering an injunction in the case. Prelogar offered to submit supplemental briefing on the question, and on Monday the court accepted that offer.

The justices directed the Biden administration and Texas and Missouri, the states challenging the decision to end the policy, to address three questions. The first is whether 8 U.S.C. § 1252(f)(1), the provision of federal immigration law at issue, limits the relief that federal courts can award. The second is whether, if Section 1252(f)(1) does impose limitations, those limitations can be forfeited if they are not raised. And the third question is whether the Supreme Court has the jurisdiction to consider the merits of the case.

The justices instructed both sides to move quickly, directing them to file initial briefs by Monday, May 9, with reply briefs to follow by Friday, May 13. The court’s decision in the case is expected by summer.

This post is also published on SCOTUSblog.

Amy L Howe
Until September 2016, Amy served as the editor and reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States; she continues to serve as an independent contractor and reporter for SCOTUSblog. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.
Tweets by @AHoweBlogger
Recent ScotusBlog Posts from Amy
  • Court declines to block execution of Texas man who argued that jurors engaged in anti-Hispanic bias
  • Court schedules final two argument sessions of 2022-23 term
  • Justices request federal government’s views on Texas and Florida social-media laws
More from Amy Howe

Recent Posts

  • Court declines to block execution of Texas man who argued that jurors engaged in anti-Hispanic bias
  • Court schedules final two argument sessions of 2022-23 term
  • Justices request federal government’s views on Texas and Florida social-media laws
  • Justices were not asked to swear under penalty of perjury that they didn’t leak Dobbs opinion
  • Supreme Court investigators fail to identify who leaked Dobbs opinion
Site built and optimized by Sound Strategies