The Biden administration has the legal power to end the Trump administration’s “Remain in Mexico” policy, the Supreme Court ruled Thursday, delivering a significant win for President Biden’s immigration policies.
The justices sent the case back to lower courts for another review of the decision-making process. In the near term, the decision appears to grant the Biden administration significant leeway in pursuing its catch-and-release policy at the border.
Chief Justice John G. Roberts Jr., writing for the 5-4 majority, said the law allows the government to push illegal border crossers back across the boundary to await their immigration court dates, but the command is not mandatory.
“Congress did not intend [the law] to tie the hands of the Executive in this manner,” he wrote. He was joined by Justices Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh.
That bolstered the hand of Homeland Security Secretary Alejandro Mayorkas, who has argued that it is a better policy to release the migrants into the U.S. with the hope that they show up for their hearings and possible deportations rather than send them back across the border.
Tens of thousands of people are being released, or “paroled,” into the country each week.
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Justice Samuel A. Alito Jr., leading the dissent, said it was tough to imagine that Congress envisioned those kinds of numbers when it set up its framework for what is supposed to happen to border jumpers.
He said Mr. Mayorkas is intentionally skewing the options to release more people who have no right to be in the U.S.
“DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible,” Justice Alito wrote. “But rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings.”
He was joined in his dissent by Justices Clarence Thomas and Neil M. Gorsuch.
Justice Amy Coney Barrett filed her own dissent, arguing that the case shouldn’t have come before the high court in the way it did, though she said she agreed with the chief justice’s reasoning on the law governing releases.
Officially known as the Migrant Protection Protocols, the Trump-era Remain in Mexico policy said illegal immigrants who jumped the border and claimed some protection in the U.S. had to go back to Mexico to wait for their eventual court hearings.
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The goal was to deny them a foothold in the U.S., the incentive that spurred the 2018-2019 migrant surge.
The Biden administration quickly moved to overturn the policy, and Texas led a lawsuit challenging that decision.
Under the relevant law, Congress has laid out three basic options for illegal immigrants who show up at the border — even those claiming asylum. They can be detained throughout their hearings, they can be pushed back across the boundary or, in special circumstances, they can be paroled.
Chief Justice Roberts said every administration, including Republican-led administrations, has used parole “to some extent.”
He did issue a caution to the Biden administration, saying the parole power is “not unbound.”
“DHS may exercise its discretion to parole applicants ’only on a case-by-case basis for urgent humanitarian reasons or significant public benefit,’” the chief justice said, quoting the law.
The warning, which echoes his words during oral arguments earlier this year, suggests the high court doesn’t see Mr. Mayorkas having a blank check on how people can be paroled.
Analysts said that could become an issue as the case goes back to lower courts for further review.
Krish O’Mara Vignarajah, president of Lutheran Immigration and Refugee Service, urged the lower courts to quickly approve the Biden administration’s plans.
“Doing anything else is contrary to our values as a country, fails to uphold our obligation to protect asylum seekers and will cause the deaths of even more vulnerable people,” she said.
Republicans predicted that the ruling would serve as an invitation for migrants to attempt to enter the U.S. illegally.
“President Biden’s reckless rhetoric and actions are encouraging illegal immigration and hurting our country,” said Sen. Marco Rubio, Florida Republican.
The Trump administration created MPP in 2019 as it dealt with the previous migrant surge.
The program started slowly, with Mexico acting as a reluctant partner. As illegal crossings hit a torrid pace in the spring of that year, President Trump warned Mexico to get on board. He threatened to impose crippling tariffs unless Mexico did more. Within days, Mexico’s foreign minister was in Washington to strike a deal.
Mexico agreed to deploy its national guard to try to derail migrants en route to the U.S. and agreed to take back more people under MPP. The border numbers began to drop immediately.
Immigrant rights groups said it is cruel to force migrants back into rough conditions in Mexico. One human rights group has documented thousands of abuses of MPP migrants, including kidnappings and assaults.
The Biden administration, siding with the activists, moved to kill the program early in the presidential term.
Texas and Missouri sued, saying they would bear the brunt of the illegal newcomers.
U.S. District Judge Matthew J. Kacsmaryk, a Trump appointee sitting in Texas, sided with the states. He ruled that the administration failed to justify its decision to kill the program. He cited statistics from the Homeland Security Department that suggested MPP had helped solve the Trump-era border surge.
The 5th U.S. Circuit Court of Appeals also sided with the states.
Thursday’s ruling skirted a reality of immigration: The government’s capacity to detain illegal border crossers isn’t up to handling the complete breakdown of the southern border.
If migrants can be detained pending their court hearings, they can be deported. If they are released, data shows, they are rarely deported.
The Trump administration was committed to detention, using powers Congress granted to shift money within the Department of Homeland Security so it could hold more than 50,000 people.
The Biden administration is more skeptical of detention and is leaving thousands of beds empty as it releases tens of thousands of people a week.
In May, Immigration and Customs Enforcement filled an average of 25,429 beds, or about 8,500 fewer than its funded capacity of 34,000. As of Monday, ICE counted 23,981 people in detention, or about 10,000 fewer than average capacity.
During oral arguments on the case, Solicitor General Elizabeth Prelogar muddied the detention picture for the justices by mixing ICE’s longer-term detention capacity with Customs and Border Protection’s holding cells at the border.
Justice Kavanaugh, in a concurring opinion Thursday, said the blame lies with those who guard the government’s purse strings and have shown an “inability” to provide enough money for detention.
“But this court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems,” he wrote.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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