The vote was 5 to 4, with Chief Justice John Roberts writing for himself and Justice Brett Kavanaugh, and the court’s three liberals, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Roberts said federal immigration law gives the executive discretion: He may return asylum seekers to Mexico but is not required to do so.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented.
Barrett said that she agreed with the majority on the merits of the decision but that the court should not have decided the case and should have remanded it to lower courts.
Alito, writing for himself, Thomas and Gorsuch, said the Department of Homeland Security should not be free to “simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings. This practice violates the clear terms of the law, but the Court looks the other way.”
At issue were the Migrant Protection Protocols (MPP) put in place by the Trump administration. Better known as the “Remain in Mexico” policy, it requires some asylum seekers who enter the country illegally, mainly from Central and South America, to return to Mexico while they await a hearing. President Donald Trump said the program was necessary to curb what his administration characterized as a flood of meritless asylum claims by migrants seeking to be released into the United States.
The justices had expedited review of Biden’s attempt to get rid of the “Remain in Mexico” policy after a lower-court judge said that the administration had not provided sufficient justification for ending it and that the administration’s procedures were unlawful.
Judy Rabinovitz, special counsel with the ACLU’s Immigrants’ Rights Project, praised the ruling.
“The Supreme Court was right to reject the spurious argument that this cruel policy is statutorily required,” she said in a statement.
“While, as noted in the decision, the case will return to the district court, the Biden administration can and should move forward swiftly to finally terminate ‘remain in Mexico’ for good – a result that has been long, and unjustly, delayed.”
Shortly after taking office in January, Biden said the administration would not continue enrolling migrants in the MPP and ordered a review. He and immigration rights groups said the policy was subjecting asylum seekers to dangerous conditions such as rape and torture, and complicating their legal proceedings in the United States. The program’s benefits, the Biden administration said, were “outweighed by its domestic, humanitarian, and foreign policy costs.”
But U.S. District Judge Matthew Kacsmaryk of Texas ruled that the Biden administration did not adequately explain its reasons for canceling the policy and that its new procedures violated federal immigration law. A federal appeals court upheld his decision and the Supreme Court last summer refused the administration’s request to intervene. Instead, it scheduled an expedited hearing.
After oral argument in April, the justices asked both sides to answer additional questions about the lower court’s authority to review the case.
The Republican-led states of Texas and Missouri had brought the lawsuit, and a panel of the U.S. Court of Appeals for the 5th Circuit kept Kacsmaryk’s order in place.
With the case under review, the Biden administration restarted the program. While federal law requires the government to detain all noncitizens who enter the U.S. illegally, Congress has never provided sufficient funding to do so. In 2021, the Department of Homeland Security processed more than 671,000 people along the southern border but had funding to detain only about 34,000 nationwide.
At oral argument, U.S. Solicitor General Elizabeth B. Prelogar said the District Court judge had misconstrued the law and interfered with the administration’s immigration and foreign policy decisions.
(c) 2022, The Washington Post · Robert Barnes
The return to Mexico policy was always stupid because Mexico is not obligated to accept non Mexicans — no country is obligated to accept non citizens. It is amazing that four Justices don’t see such an obvious problem.
And it is well established that a government agency can’t execute a law for which there is no funding.
51 minority migrants, dead in the back of a tractor trailer and you just don’t give a. YOU are the true meaning of a racist.