Court fight adds to Biden’s immigration woes

President Joe Biden faces political peril as a showdown at the Supreme Court on immigration coincides with widespread criticism of his plan to end pandemic-related border controls.

Justices on Tuesday will consider whether Biden can end former President Donald Trump’s “remain in Mexico” policy, which has forced tens of thousands of asylum-seekers to stay south of the border while their applications are processed. A federal trial judge ordered the Biden administration to restart the program.

A ruling against the administration would further complicate Biden’s handling of immigration — an issue on which voters already give him low marks, polls show.

“Republicans smell blood,” said Frank Sharry, executive director of the liberal immigrantrights group America’s Voice. Democrats are “getting division in the ranks.”

There are no easy answers for the president. His Democratic base has vented frustration at the slow progress of rolling back his predecessor’s policies. At the same time, near-record border apprehensions have fueled Republican accusations that Biden’s desire for more welcoming policies are to blame — something that in turn has fired up GOP voters.

Border agents had more than 221,000 encounters with migrants last month at the southwest border, the highest numbers in at least two decades.

Tuesday’s remain-in-Mexico arguments may give critics fresh ammunition. The administration’s courtroom opponents, Texas and Missouri, say termination of the Migrant Protection Protocols program would mean the “en masse release” of undocumented immigrants into the country.

The states say illegal crossings and border encounters soared after the program’s temporary suspension last year.

Immigration advocates say the policy forces people to live in dangerous and squalid conditions in Mexico — and makes it more difficult for migrants to secure legal assistance.

Biden’s Department of Homeland Security rescinded the program last year, but U.S. District Judge Matthew Kacsmaryk

in Texas ordered it reinstated. A federal appeals court upheld that order.

The conservative-dominated Supreme Court hinted at its leanings in August, rejecting Biden’s request to block Kacsmaryk’s ruling while the litigation went forward.

The dispute turns on the intersection of three provisions in federal immigration law. One says asylum applicants who aren’t clearly admissible “shall be detained,” a second says DHS can let those people stay in the U.S. on a “case-by-case basis,” and a third lets an administration return migrants to the country from which they arrived.

Texas and Missouri say that DHS lacks the capacity to detain everyone, so it must invoke the provision that lets people be returned to Mexico.

“DHS must faithfully comply with Congress’s mandatory-detention obligations — which means it cannot refuse to use a lawful tool to carry out that obligation merely because it prefers not to do so,” the states argued in court papers.

U.S. Solicitor General Elizabeth Prelogar, who represents the Biden administration, said the court should defer to DHS’ conclusion that the program poses unacceptable risks to migrants and undercuts diplomatic efforts to address immigration issues.

The order to restart the program “dramatically intrudes on the executive’s constitutional and statutory authority to manage the border and conduct the nation’s foreign policy,” she argued.