Published on April 27, 2022 at 2:19 p.m.
Kelsey Reichmann
Courthouse News Service
WASHINGTON — Red states challenging the president’s authority over immigration policy made little headway before the Supreme Court in nearly two hours of oral arguments Tuesday on Trump-era migrant protection protocols.
The policy better known as “Remain in Mexico” requires asylum seekers to stay in Mexico, instead of the United States, while their claims are processed. Although aimed at curbing the “capture and release” of migrants in the United States, immigration advocates say it has created a humanitarian disaster at the border. President Joe Biden campaigned on the promise to unravel the MPP and sued in Texas and Missouri when he followed through.
During oral arguments in Washington on Tuesday morning, the justices appeared skeptical that states have the power to overrule decisions of the Secretary of Homeland Security.
“I think it’s a bit too much for Texas to step in for the secretary and say you might want to end this, but you have to keep it because it will slightly reduce your violations of the law,” said Chief Justice John Roberts. Texas Solicitor General Judd Stone II.
Department of Homeland Security regulations allow the government to use its power of parole on a case-by-case basis if it serves an important public interest. Judges Brett Kavanaugh and Amy Coney Barrett seemed to think the settlement would give the government the power to keep migrants in the United States while their applications are processed instead of sending them back to Mexico.
“[Section] 1182 is key because there is this phrase ‘significant public benefit’ for the parole of everyone in the United States,” Kavanaugh said. “And they say, consistent with past practice, that language allows, in a situation of limited capacity, parole in the United States.”
Barrett told Stone that Texas would lose if the government was right about this provision.
“If the government is right about what the important public interest is and prioritizing beds based on who would be dangerous, who would be the worst foreigners to allow into the United States…if they’re right about the public interest important, you lose,” Barrett said.
Judge Elena Kagan focused on the foreign policy implications of forcing the administration to maintain the policy. Kagan said Texas’ position would leave the United States at the mercy of Mexico.
“It doesn’t really seem like a trivial APA thing to basically tell the executive how to implement its foreign and immigration policy and that’s what it does,” the Obama appointee said, abbreviating the law. known as the Administrative Procedure Act. “It basically puts the United States at the mercy of Mexico.”
The government has asserted that federal courts are not supposed to have the power to overrule executive decisions as they have here.
“The idea here that there’s a single district court in Texas that’s demanding those outcomes, that’s forcing the executive to engage in those ongoing negotiations, and does so under the constant threat of a motion to outrage from Texas to oversee our good faith negotiations with Mexico show that something has gone seriously wrong here,” said US Solicitor General Elizabeth Prelogar. “This is not how our constitutional structure is supposed to work and it is not is not the statute that Congress drafted.”
The government has not escaped the wrath of judges facing stern questions about whether its wish to get rid of politics would interfere with congressional guidelines. The judges’ questions related to the provisions of the Immigration and Nationality Act, which states that the agency “shall” detain immigrants during removal proceedings. But the law also says the Secretary of Homeland Security “may” return immigrants to their home country while their case is pending. Texas says these provisions require the government to detain migrants or return them to Mexico. The government says “may” gives them the discretion to grant parole.
A complication the government relies on is that it is not in fact possible for it to detain every migrant who seeks asylum in the United States. Prelogar told judges the government apprehended about 220,000 people at the border in March 2022, but only had 32,000 detention beds.
“It’s kind of obvious and nobody disputes here that there’s a huge shortfall and that DHS couldn’t detain everyone they meet at the border,” Prelogar said.
However, the justices questioned whether the Department of Homeland Security’s lack of funding to complete the congressional directive was really a problem for them to solve.
“You’re in a position where the facts have kind of overtaken the law,” Roberts said. “What are we supposed to do? It’s always our job to say what the law is and if we say what the law is and you tell us we can’t do anything about it, where do you think that lead us ?”
President Biden suspended the Remain in Mexico program on his first day in office, and his Secretary of Homeland Security officially ended the policy in June 2021. When Texas and Missouri for follow-up relaunch the policy, Appointed by Trump judge restored deputy. The decision was made despite appeals for relief in the Fifth Circuit and the Supreme Court. The case landed on the high court register after a failed call Fifth circuit.
It’s not the only Trump-era immigration policy the Biden administration has had to fight in court. The administration is currently faced suit about the repeal of Title 42, a Homeland Security pandemic-related health policy.
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