The U.S. Supreme Court on Tuesday heard arguments about whether President Joe Biden’s administration can lawfully end a Trump-era program that forces migrants seeking asylum to wait in Mexico, a move that federal courts have blocked so far.
Justices on the high court began hearing arguments Tuesday morning for and against Biden’s plan to end the “Remain in Mexico” program, which was imposed by former President Donald Trump in 2019 to clamp down on the flow of refugees able to enter the United States.
Under Trump’s program, asylum seekers at the border are required to wait in Mexico until they get an immigration hearing — a period during which they used to be able to wait in the United States.
Biden revoked the program on his first day in office in January 2021 and the Homeland Security Department formally put an end to it last June. The Supreme Court, however, later ruled that the government had to restart the program — and subsequent administration efforts to justify the move have been unsuccessful in federal courts.
In hearing the case, Biden vs. Texas, the Supreme Court will ultimately determine whether the Homeland Security Department is obligated to enforce provisions of the Remain in Mexico program — known formally as the Migrant Protection Protocols, or MPP — as the only legal way to comply with congressional orders against releasing would-be refugees into the United States as they wait for hearings.
Biden’s administration contends that Trump’s program is discretionary and can lawfully be undone.
In addition, various states are on both sides of the issue. Texas and Missouri have both sued to keep the MPP program in place while other more progressive states are siding with Biden’s move.
Questions surrounding enforcement of the policy have reached the Supreme Court twice before — in March 2020 when the high court allowed the policy to remain in effect after it was blocked by a California judge, and again last August when justices ordered Biden’s administration to resurrect the program.
The administration attempted to further explain its reasoning for ending the program in October, which eventually led to Tuesday’s hearing before the Supreme Court.
Tens of thousands of asylum seekers were affected by Trump’s program and human rights advocates argue that the policy endangers the lives of the immigrants as they have no choice but to seek refuge in squalid and dangerous tent camps on Mexico’s side of the border. Further compounding their problem, the advocates note, is that many are never able to find attorneys to argue their case — and if they do, some cannot afford the legal costs.
U.S. District Judge Matthew Kacsmaryk last year ruled in favor of the lawsuits by Texas and Missouri that blocked the MPP’s removal. He said Biden’s order did not give sufficient weight to the “main benefits” of MPP and said that removing the policy would cause the states harm because asylum seekers allowed to wait in the United States would likely access government services and send their children to schools in both states.
Following the ruling, Homeland Security Secretary Alejandro Mayorkas released a second, more extensive memo seeking to end the policy in October, arguing that the benefits for maintaining MPP “do not justify the costs.” The U.S. Court of Appeals for the 5th Circuit, however, upheld Kacsmaryk’s order.
On Tuesday, the Supreme Court is weighing an additional argument from the states that says the administration’s October memo ought to have no legal effect.
Biden’s administration contends that federal law stipulates that the MPP is discretionary and can legally be removed. It says the law clearly lays out discretion for the Homeland Security Department to send asylum seekers to Mexico or Canada as they await hearings. It also notes that, based on that 1996 law, if the states are correct in their argument, then every presidential administration since — including Trump’s — would have been in violation.
The administration also says that its October memo should indeed carry legal effect because the Supreme Court itself has previously explained that an agency “may either elaborate on its prior reasons or issue a new decision” when a court concludes its explanation for action is inadequate.
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