One down, one to go
Amidst a sea of bad decisions, the Supreme Court delivered a rare bit of good news by ruling in Biden vs. Texas that the federal government can unwind the draconian and unprecedented Remain in Mexico program. The brainchild of Stephen Miller’s diseased, xenophobic worldview, this policy had sent tens of thousands of asylum seekers back into Mexico to await their U.S. court hearings, forcing them to stay close to the border in squalid camps where they could hardly find lawyers and were easy pickings for criminals and gangs.
Most ultimately went unrepresented, thousands missed their court dates and lost their cases when they could not get back across the border in time, and hundreds were kidnapped, raped and murdered as they waited. Though the program itself was authorized by law, it should never have been put into widespread use and the Biden administration rightly moved to terminate it.
Texas and Missouri — whose participation might be a little puzzling to anyone who has seen a map of the United States and where its borders are located — bizarrely argued that the program, discretionarily enacted by Trump, could not be discretionarily ended by Biden. As Chief Justice John Roberts simply points out in his decision, the word “may” in the statute cannot possibly be twisted into requiring the program to exist. Sometimes textualism is actually a straightforward exercise.
Next on the chopping block should be the terrible Title 42 policy, which for two years has been used to expel migrants without even allowing an asylum claim, supposedly as a COVID countermeasure.
While these programs must end, the administration cannot be caught flat-footed. It must set the groundwork to prevent the immigration court system from being overwhelmed by new cases, including by expanding a program to allow the U.S. Citizenship and Immigration Services to adjudicate asylum claims and hiring additional judges to quickly but fairly decide on merits. To those seeking to come to America and those already here, we have a responsibility to create a humanitarian system that is both just and efficient.