The Biden administration reinstated the court-ordered program in December, with increased protections for migrants. But the administration continued to defend the case in court, and the Justice Department asked the Supreme Court to intervene later that month.
Homeland Security Secretary Alejandro Mayorkas also issued another memo in October ending the program again in a bid to address the judge’s concerns. However, the Court of Appeal concluded that this later termination note had no legal effect.
Government lawyers told the High Court of their petition of December 29 that the lower court rulings ordering the relaunch of border policy, if upheld, “will continue to seriously undermine the constitutional and statutory authority of the executive branch to manage the border and conduct the nation’s foreign policy.”
In a response brief last month, Texas and Missouri countered that federal immigration law requires the government to detain migrants who arrive at the border without legal entry documents. Since the government does not have the capacity to detain all arriving migrants at immigration centers in the United States, then the government must use its discretion to detain them in Mexico, they argued.
Karen Tumlin, director and founder of Justice Action Center, an immigrant advocacy group, said the appeals court ruling ordering the deputy’s reinstatement was “so extreme that it threatens to undermine any administration seeking to uphold the will of the people, regardless of political party or affiliation.”