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Will remain-in-Mexico policy remain under Biden? Supreme Court to decide

As public polling shows waning support for his administration’s immigration decisions, President Biden asks the justices to enforce one of his first actions.

WASHINGTON (CN) — Next Tuesday, in a contentious battle that could have big implications for administrative law, the Supreme Court will hear arguments over the Biden administration’s stumbling efforts to shape its own immigration policies.

When President Joe Biden was elected, immigration advocates breathed a sigh of relief in expectation that the new administration would nix one of the most well-known Trump-era immigration policies: the Migrant Protection Protocols — better known as Remain in Mexico — aimed at preventing the “catch and release” of migrants into the U.S.

The policy required migrants to stay in Mexico instead of the U.S. while their asylum claims were processed, but, according to immigration advocates, created a humanitarian disaster at the border in the process.

Biden acted quickly to fulfill his base’s wish, suspending the program on his first day in office. By the end of June 2021, his secretary of Homeland Security formally terminated the policy. 

Not long after, however, the administration’s plans hit a snag when Texas and Missouri revived the policy in a suit claiming the termination led to increased health care, education, social services and law enforcement costs. A Trump-appointed judge restored MPP, and that ruling held despite the Biden administration’s pleas to the Fifth Circuit and Supreme Court. The Biden administration appealed to the justices again after the Fifth Circuit defeat, and the high court agreed to hear the case in February

Tuesday’s arguments will take a deep dive into provisions within the Immigration and Nationality Act. Provisions within the law say says the agency “shall” detain immigrants during removal proceedings, and the Homeland Security secretary “may” return immigrants to their home countries while the case proceeds. The court’s decision will hinge on how these provisions are interpreted. 

Texas argues that DHS must detain migrants while their claims are processed, and, because the U.S. doesn’t have the capacity to hold every migrant in detention, it claims the government needs to deport them while they wait. 

“Petitioners would prefer not to choose from the options Congress has provided — namely, to detain, individually parole, or return covered aliens,” Texas Solicitor General Judd Stone II wrote in the states’ brief. “They instead seek the power to release classes of aliens into the United States en masse. But Congress foreclosed that possibility by restricting DHS’s relevant parole authority to only case-by-case exercises in narrow circumstances.” 

The government argues that Congress’ language gives DHS discretion to determine that certain noncitizens do not need to be detained pending their removal, and the executive branch has historically maintained that discretion.

“The statutory text is plain: The Secretary ‘may return’ land-arriving noncitizens to Mexico or Canada pending removal proceedings,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “Congress’s use of the word ‘may’ unmistakably indicates that contiguous-territory return is a discretionary tool that the Secretary has ‘the authority, but not the duty,’ to use.” 

Prelogar also points to the fact that the U.S. has never had the detention capacity to detain every single person who crosses the border, so every administration would be in violation of the statute. 

“Under the court of appeals’ unprecedented interpretation of Section 1225, every presidential administration — including the one that adopted MPP — has been in open and systemic violation of the INA since the relevant provisions were enacted in 1996,” Prelogar wrote. “And the far-reaching consequences of that interpretation for the Executive’s constitutional authority to manage the border and conduct foreign policy confirm that the court erred.” 

The district court considered the government’s June termination to be in violation of the Administrative Procedure Act because it offered an arbitrary reason for ending MPP. In October, Homeland Security released a memorandum that included a 39-page explanation for terminating MPP. When the government appealed to the Fifth Circuit, the appeals court refused to give legal effect to the October termination and claimed the government was undertaking a new decision-making process while appealing the rejection of the initial termination action. Administrative law experts argue the Fifth Circuit’s ruling presents a dangerous precedent in this case. 

“The Fifth Circuit’s decision disallowing the Executive Branch to change a policy if it fails to satisfy the APA on its first attempt is manifestly wrong and dangerous,” Kathleen Hartnett, an attorney with Cooley representing administrative law professors, wrote in an amicus brief in the case. “It is at odds with fundamental principles of administrative law and multiple decisions of this Court. And it threatens the ability of agencies to advance change responsive to the democratic process and to evolving understandings of science, markets, and other on-the-ground realities.” 

Seventeen states and the District of Columbia weighed in on the case, expressing concerns over the precedent the ruling could set for executive power. The states also claim MPP harms members of their communities and halts migration on which the states rely. 

“At the most basic level, the decision below harms the amici States by depriving those States of members of their communities who might have migrated there absent the court order restoring MPP,” Jane Elinor Notz, Illinois solicitor general, wrote in the states’ brief. “Immigrants — including noncitizens — are a vital and substantial part of our nation.” 

MPP is not the only Trump-era immigration policy in Biden’s crosshairs. The administration is also planning to end a public health authority — known as Title 42 — that allowed border authorities to turn away migrants at the southern border. A lawsuit from more than 20 states has already been filed to challenge the action. 

While polling found that 85% of Democrats were confident in Biden’s ability to make wise decisions about immigration policy at the beginning of his presidency, that number has now fallen to 66%. It is unclear how these court battles will play out, however, it is likely they could play a role in the coming midterm elections. 

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