Majority of Supreme Court allow for Biden termination of ‘Remain in Mexico’ policy

The Supreme Court issued several rulings this term that are contrary to the policy agenda of Democrats and President Joe Biden, but it did grant the president at least one significant victory with regard to his administration’s efforts to terminate the Migrant Protection Protocols, better known as the “Remain in Mexico” policy.

A 5-4 majority of the high court ruled that the Biden administration could end that particular immigration-related program and further admonished the lower courts for having exceeded its jurisdiction to impose a nationwide injunction blocking earlier efforts to terminate the policy, the Conservative Brief reported.

The majority was led by Chief Justice John Roberts, who was joined by Justices Brett Kavanaugh, Stephen Breyer, Elena Kagen, and Sonia Sotomayor.

“Remain in Mexico” policy terminated

First enacted in 2019, the “Remain in Mexico” policy offered an alternative to detention or release into the U.S. for migrants arriving at the southern border with Mexico and required them to wait in Mexico while their applications for admission or requests for asylum were processed by immigration courts, according to SCOTUSblog.

President Biden suspended that program as soon as he entered office in January 2021, and his Department of Homeland Security attempted to formally end it in June, only to be blocked by an injunction from a district court in favor of a lawsuit filed by Texas and Missouri — a ruling that was later upheld by an appeals court, along with the district court’s order that the policy be re-implemented “in good faith.”

Amid all of that, DHS issued another memo in October that ostensibly superseded the challenged decision in June but, nonetheless, still achieved the same result — termination of the “Remain in Mexico” program.

“May” versus “shall” and the discretion of DHS

Writing for the court’s majority, Chief Justice Roberts first took the lower courts to task for exceeding jurisdiction and improperly imposing a nationwide injunction against the government that compelled it to restart the “Remain in Mexico” program in spite of the efforts to end it.

That action ran afoul of 8 U.S.C. Sec. 1252(f)(1), which states that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of” certain immigration statutes except on an individual basis — meaning no nationwide or class-wide injunctions or orders.

As to the merits of the case, that largely revolved around the distinctions between two separate provisions within the same statute, 8 U.S.C. Sec. 1225, specifically 1225(b)(2)(A) and 1225(b)(2)(C), the first of which states that migrants not obviously permitted to enter the country “shall be detained” while the latter states that such migrants who arrived from a contiguous territory, such as Mexico, “may return” to the territory they just arrived from.

In the end, Roberts determined that the use of “may” in that statute constituted congressionally authorized discretion and, therefore, did not bind the government to a program that would require migrants arriving from Mexico to be returned to that country while awaiting a decision on whether they could enter or not.


SCOTUSblog noted that Justice Kavanaugh wrote a concurring opinion that seemed to call upon Congress to provide DHS with more funding to detain more migrants instead of releasing them, while Justice Amy Coney Barrett wrote an opinion of her own that concurred with the majority’s analysis but dissented in that she would have kicked the case back down to the lower levels for further consideration.

Justice Samuel Alito, joined by Justices Neil Gorsuch and Clarence Thomas, wrote a scathing dissent against the majority that decried the government’s abuse of yet another statutory provision that allows for release on parole of migrants awaiting adjudication — something that is only supposed to be done on a “case-by-case basis” but which appears to be used as a perfunctory catch-all to allow for the mass release of tens of thousands of migrants into the U.S. who may not be eligible for entry.

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