OPINION ANALYSIS

Divided court allows Biden to end Trump’s “remain in Mexico” asylum policy

This article was updated on June 30 at 4:53 p.m.

The Supreme Court on Thursday handed the Biden administration a major victory, giving it the green light to end one of the Trump administration’s signature immigration programs: the controversial “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 divided 5-4, with the court’s three liberal justices and Justice Brett Kavanaugh joining an opinion by Chief Justice John Roberts.

The ruling in Biden v. Texas was the latest chapter in the tug-of-war over the policy, formally known as the Migrant Protection Protocol, since the Trump administration announced it in 2018. The justices allowed the Trump administration to begin enforcing the policy after a federal district judge blocked it, and a few months later the justices agreed to review a ruling by the U.S. Court of Appeals for the 9th Circuit holding that the policy likely violated both federal immigration and international law. The justices dismissed that case last year, however, after the Biden administration attempted to end the policy.

Texas and Missouri challenged the Biden administration’s efforts to terminate the policy. After a federal district judge in Texas ordered the federal government to reinstate the policy, both the U.S. Court of Appeals for the 5th Circuit and the Supreme Court rejected requests from the Biden administration to temporarily put the district judge’s ruling on hold, prompting the government to revive the policy while litigation continued.

The court on Thursday agreed with the Biden administration that ending MPP would not violate federal law. But before it reached that conclusion, it had to address a threshold question: whether a provision of federal immigration law limits the relief that federal courts can award, and therefore barred the lower courts from entering an injunction in the case. That statute, 8 U.S.C. § 1252(f)(1), provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operations of” several immigration-enforcement laws.

The justices confronted Section 1252(f)(1) in a recent case, Garland v. Aleman Gonzalez, challenging two district court orders requiring the Biden administration to provide immigrants awaiting deportation with a hearing after six months in detention. In an opinion by Justice Samuel Alito, the court ruled that, because of Section 1252(f)(1), the district court did not have the authority to issue an order granting relief for an entire class of immigrants. In the MPP litigation, Roberts wrote, the district court’s order directing the administration to reinstate MPP similarly violated Section 1252(f)(1) — but that doesn’t mean the district court lacked the power to consider the case at all. And in any event, Roberts noted, Section 1252(f)(1) specifically reserves the Supreme Court’s power to consider the case and enter an injunction.

On the merits, the case centered on a different statute: Section 1225(b)(2)(C) of the Immigration and Nationality Act, which provides that the federal government “may” return an asylum seeker who arrives at the U.S. border with Mexico or Canada to that country to await a hearing. The use of the word “may,” Roberts explained, indicates that the government has the discretion to return asylum seekers, but it is not required to do so. And that discretionary authority is not changed, Roberts continued, by another provision of federal law that makes detention mandatory. If Congress had wanted to require the government to return asylum seekers to Mexico or Canada if it did not detain them, Roberts reasoned, it would have said so, rather than making return discretionary. Indeed, Roberts observed, every presidential administration has interpreted Section 1225(b)(2)(C) as discretionary. And although Congress has never provided enough money to detain all asylum seekers who arrive at the U.S. borders with Mexico or Canada, Roberts added, “no administration has ever used section 1225(b)(2)(C) to return all such aliens that it could not otherwise detain.”

The ”foreign affairs consequences” of requiring the government to return all asylum seekers to Mexico while they wait for a hearing confirm, Roberts added, that the 5th Circuit’s interpretation of Section 1225(b)(2) is incorrect. The federal government cannot return asylum seekers to Mexico without the Mexican government’s cooperation, Roberts explained. Requiring the Biden administration to keep MPP in place, Roberts wrote, had “force[d] the Executive to the bargaining table with Mexico, over a policy that both countries wish to terminate” and allowed the district court to “supervise its continuing negotiations with Mexico to ensure that they are conducted ‘in good faith.’” “Congress did not,” Roberts concluded, “intend section 1225(b)(2)(C) to tie the hands of the Executive in this manner.”

Although he joined the Roberts opinion, Justice Brett Kavanaugh also wrote separately to stress that when there is not enough space to hold all asylum seekers who are waiting for a hearing, prompting the administration to allow asylum seekers to enter the U.S. rather than returning them to Mexico because of the foreign-policy concerns that returning them to Mexico might raise, courts should generally defer to the administration’s judgment. Kavanaugh concluded by criticizing the failure to provide the Department of Homeland Security with the funding to allow it to detain all asylum seekers. “But this Court has authority to address only the legal issues before us,” Kavanaugh acknowledged. Justice Amy Coney Barrett indicated that, with regard to whether the Biden administration can end MPP, she agreed with the majority’s analysis. But she would not have reached that question, because she would have sent the case back to the lower courts to determine whether they had the power to enter an injunction requiring the Biden administration to reinstate MPP.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch joined Barrett’s dissent to the extent that she would have remanded the case to the lower courts; they did not agree that the majority had properly interpreted Section 1225(b)(c). Instead, in a dissent by Alito that Thomas and Gorsuch joined, they rejected the Biden administration’s contention that it is not required to either detain asylum seekers or return them to Mexico to await a hearing. The administration’s contention that “it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings” is a practice that “violates the clear terms of the law, but the Court looks the other way.”

This article was originally published at Howe on the Court.