Court backs bid to end 'Remain' policy

In the latest undoing of President Trump’s border policies, the Supreme Court ruled on Thursday that the Biden administration could do away with the “Remain in Mexico” policy, which has forced many asylum seekers to wait south of the border for their immigration hearings.

The 5-4 decision found a federal appeals court was wrong to require the Department of Homeland Security to continue the program, formally known as the Migrant Protection Protocols, while the case made its way through the courts.

“Nothing prevents an agency from undertaking new agency action while simultaneously appealing an adverse judgment against its original action,” Chief Justice John Roberts wrote in the majority opinion, joined by fellow conservative Justice Brett Kavanaugh and liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

In a separate concurrence, Kavanaugh wrote that with insufficient detention capacity, both releasing asylum-seekers into the US and sending them back to Mexico “are legally permissible options under the immigration statutes.”

Joe’s claims

The Biden administration had repeatedly attempted to end the policy, arguing that it exposed migrants to unacceptable risks and detracted from the executive branch’s right to manage the borders as it saw fit.

President Biden paused the MPP immediately after taking office, and the DHS issued an initial memo ending the policy in June 2021.

The White House requested the Supreme Court hear the case after a lower-court judge ordered the policy to continue in response to a lawsuit from Texas and Missouri.

The judge had ruled that in ending the MPP, the administration had acted with “no input from Congress, no ordinary rule-making procedures and no judicial review.”

In October, the DHS produced a memo detailing more reasons to end the policy, but the lower court was unmoved.

About 70,000 people were enrolled in the MPP after President Donald Trump launched it in 2019. It resumed in December, but the Biden administration has registered only 7,259 migrants in the program.

Thursday’s ruling leaves the door open for states to pursue a challenge based on claims that the White House did not follow proper administrative procedure in ending the program.

In a dissent, Justice Samuel Alito, joined by fellow conservative Justices Clarence Thomas and Neil Gorsuch, noted that the DHS does not have the capacity to detain the record number of migrants encountered at the border.

“But rather than avail itself of Congress’ clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country,” Alito wrote. “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.

“This practice violates the clear terms of the law, but the court looks the other way.”

In a separate dissent, Justice Amy Coney Barrett argued that the whole case should have been settled by the lower courts first, noting the high court was “a court of review and not first view.”

GOP outrage

Thursday’s decision was criticized by Republican lawmakers and officials.

Rep. Yvette Herrell (R-NM) tweeted: “The United States of America no longer has a southern border. If human trafficking, drug smuggling, and illegal immigration were bad before, we’re about to see a once-in-alifetime disaster unfold under Joe Biden.” And Rep. Andy Biggs (R-Ariz.) tweeted, “Joe Biden has created the worst border crisis in our nation’s history. Terminating ‘Remain in Mexico’ will only make the crisis worse.”

Texas Attorney General Ken Paxton tweeted: “I am disappointed in SCOTUS allowing Biden to dissolve the Remainin-Mexico program, one of our last & best protections against the Dems’ border crisis. I will con’t to fight to secure our border & hold Biden accountable in my dozen other border-security suits in federal court.”

Hundreds of thousands of migrants have attempted to enter the US in recent months, with border encounters hitting 239,416 in May alone.