Supreme Court conservatives divided over ‘Stay in Mexico’ policy : NPR

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The Supreme Court of the United States

Drew Angerer/Getty Images

At the U.S. Supreme Court on Tuesday, conservative justices appeared uncharacteristically torn about whether the Biden administration should continue with the Trump-era “Stay in Mexico” agenda. The policy requires asylum seekers, mostly from Central and South America, to be detained in the United States or remain in Mexico while they wait months or years for hearings.

The pleadings are not always conclusive, and sometimes the judges punch the lawyers on one side, then turn around and deliver equally brutal blows on the other side. That’s what several key conservative justices did on Tuesday as they considered whether the Biden administration could revoke the Trump-era policy.

The problem is that the law directs the government to detain asylum seekers, but Congress has only allocated enough money to detain 30,000 to 40,000 people at any one time, a small fraction of immigrant asylum seekers. asylum.

Representing the Biden administration, Solicitor General Elizabeth Prelogar told the justices that even the Trump administration was unable to meet the demands of its own policy.

“You’re in a position where the facts have kind of overtaken the law,” Chief Justice John Roberts noted, but “it’s still our job to say what the law is, and if we say what is the law, and you tell us there’s nothing we can do about it, where do you think it gets us?”

Judge Brett Kavanaugh asked Prelogar if there was any indication that Congress, when the law was last rewritten in 1996, knew that hundreds of thousands of people would be released in the United States pending their hearings.

“Do you agree that Congress has expressed a preference for detention where it is available?” Kavanaugh pushed harder.

“Yes, we do,” Prelogar asserted, but she noted that since the law was enacted in 1996, no administration, Democrat or Republican, has had the resources to detain all migrants crossing the border.

In March of this year, Prelogar observed, there were more than 220,000 border crossings, but funds for only 30,000 detention beds, and in the Trump administration similar numbers led to the same results.

If Prelogar faced a skeptical court, so did Judd Stone, representing the state of Texas and his assertion that the Biden administration cannot revoke the stay-in-Mexico policy.

The first to put him on the spot was Judge Clarence Thomas, the most conservative member of the court. Responding to questions from Thomas, Stone acknowledged that Texas could have brought a lawsuit like this against the Trump administration, and he acknowledged that no other administration had ever complied with the detention mandate. This concession prompted Thomas to observe, “Wouldn’t it be odd if Congress left in place a law that would seem impossible to enforce?”

Chief Justice Roberts seemed to agree: “I think it’s a bit too much for Texas to step in for the secretary [of Homeland Security] and say you may want to end it but you must keep it because it will reduce your violations of the law to some extent.”

Picking up on the leader’s thread, Judge Elena Kagan wondered how come a federal court can tell the executive how to implement its foreign and immigration policy. If the state of Texas won, she said, it would “put the United States essentially at the mercy of Mexico,” giving a foreign country “all the clout” it needed to make a long run. list of demands that should be met by the United States.

And Judge Amy Coney Barrett underscored the federal government’s interest in prioritizing the detention of the most dangerous migrants seeking to enter the United States “If [the Biden administration] right about that, you lose, am I right?” she asked.

We will see what the answer to this question will be when the court decides the case, probably at the end of June.

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