Supreme Court fights Biden proposal to end ‘Stay in Mexico’ program

WASHINGTON – The Supreme Court appeared disappointed Tuesday during a dispute over whether the Biden administration could end a Trump-era immigration program that forces asylum seekers arriving at the southwestern border to wait for approval in Mexico.

The contested program, commonly known as Stay in Mexico and officially referred to as the Migrant Protection Protocols, applies to people who have left a third country and traveled through Mexico to reach the US border. After the policy went into effect in early 2019, tens of thousands of people waited in unsanitary campgrounds for immigration hearings. There were numerous reports of sexual harassment, kidnapping and torture.

Shortly after taking office, President Biden attempted to wind down the program. Texas and Missouri sued, and lower courts reinstated it, holding that federal immigration laws require returning immigrants who arrive by land and who cannot be detained while their cases are being heard.

Several judges have expressed misgivings about interference in foreign affairs and have suggested that there is no fully satisfactory answer to the questions posed in the case, largely because the relevant provisions of the law are difficult to reconcile.

One provision states that the federal government generally “must detain” immigrants while they await review of their immigration procedures. But Congress has never allocated enough money to detain so many casualties.

In 2021, for example, the government processed about 670,000 migrants arriving along the Mexican border but was able to detain about 34,000 people.

“Congress can ask for detention,” Chief Justice John J. Roberts Jr. said, “but it hasn’t found the money to provide more beds.”

Judd E. Stone II, Solicitor General of Texas, said he is requiring the federal government to address the second provision of the law, which says it “may return” overland migrants to the country they came from.

Elizabeth B. Prelogar, Solicitor General of the United States, responded that the provision was, by its terms, discretionary—after all, it used the word “may”—and required the consent of the other country. She added that no administration, including the Trump administration, has interpreted the provision as requiring the return of all immigrants who could not be detained.

Judge Elena Kagan said the second provision should be discretionary, as another country is affected.

“Congress, knowing that Mexico is a sovereign state, didn’t see fit to say, ‘You have to send people back to Mexico,'” she said. “They understood that there had to be prudence and important foreign policy considerations in this choice.”

The third provision allows the government to release migrants in the United States while they are awaiting a hearing, “on a case-by-case basis for urgent humanitarian reasons or for significant public benefit.” Ms Prelogar said the government used this provision for tens of thousands of migrants every month.

Judge Samuel A. Alito, Jr. questioned whether the government was applying the statutory criteria more than superficially. Chief Justice Roberts told Ms. Prelogar that “if you read the statute, there is no limit to the number of people you can release in the United States.”

Liberal judges said the court should be wary of conducting foreign policy.

“Judges, this is above your salary,” Judge Steven J. Breyer said. “Stay away from it as much as possible.”

Justice Kagan said that federal judges should not have the power to order the government to take actions that are contrary to its diplomatic priorities. – What should we do? she asked. “Just drive trucks full of people to Mexico and leave them without negotiating with Mexico?”

Last year, Judge Matthew J. Kaczmarik United States District Court for the Northern District of Texas in Amarillo, rules that immigration laws require the return of non-citizen asylum seekers to Mexico when the government lacks the resources to detain them.

The Biden administration promptly asked the Supreme Court to intervene, but refused to block Judge Kaczmarik’s decision to restart the program. Three more liberal judges disagreed.

Courts brief unsigned order said at the time that the administration appeared to have acted arbitrary and capriciously in canceling the program, citing a 2020 decision that denied the Trump administration the immediate cancellation of an Obama-era program protecting young immigrants known as the Dreamers.

The Biden administration then moved to restart the program, even though it made a new decision to terminate it. Administration officials, responding to criticism for acting hastily, released a 38-page memorandum outlining their case.

They concluded that the costs of the program outweighed its benefits. The memo said that among those costs were the dangerous conditions in Mexico, the difficulty immigrants had in dealing with lawyers abroad, and how the program undermined the administration’s foreign policy goals and domestic policy initiatives.

A three-judge panel of the US Court of Appeals for the Fifth Circuit in New Orleans, rejected the administration’s plan to close the program.

“The government declares that it has the irrevocable and unilateral power to create and eliminate entire components of the federal bureaucracy that affect countless people, tax revenues and sovereign states,” Judge Andrew S. Oldham wrote for the panel. “The government also declares that it has the irrevocable and unilateral right to override statutory restrictions imposed by Congress.”

“And the government says it can do all this by printing a new memo and posting it online,” he added. “If the government were right, it would replace the rule of law with the rule so to speak. We think the government is wrong.”

Judge Brett M. Cavanaugh stated that the memorandum offers “no real explanation of what the public benefit is from the increase in the number of people coming to the United States who are not legally admitted to the United States, instead of trying, if possible, so that some of these people stay.” in Mexico.”

Ms. Prelogar said the appeals court’s decision amounted to an unwarranted interference with the president’s foreign affairs powers.

“Something went very wrong,” she said, closing her argument on Tuesday in Biden v. Texas, no. 21-954. “This is not how our constitutional structure is supposed to work.”