Supreme Court hears challenge about 'remain in Mexico' policy as Biden faces immigration backlash

• The high court will consider whether Biden properly ended Trump's "Remain in Mexico" policy.
• Though it's a different program, the case could have implications for Title 42.
• The Supreme Court case has once again thrust immigration to the fore ahead of the midterm elections.

WASHINGTON – The Supreme Court will hear oral arguments Tuesday over President Joe Biden’s effort to suspend a Trump-era policy requiring asylum seekers to wait in Mexico while their cases are considered, elevating immigration at the nation's highest court as it becomes a central issue in the fall midterm elections. 

The appeal brings President Donald Trump's "remain in Mexico" policy back before the justices only months after a majority said the Biden administration did not properly shut down the controversial program and ordered immigration officials to reinstate it.

Immigration has resurfaced as a key election controversy as the Biden administration comes under fire from Republicans and some Democrats for attempting to end a related policy known as Title 42, in which migrants are rapidly expelled from the USA without legal review. Though the two programs are based on different laws, experts say the Supreme Court’s ruling in Biden v. Texas may have implications for Title 42.

Advocates say both policies remove migrants from the country – at least on a temporary basis, when it comes to MPP – before their cases have been reviewed. 

"We're at a point where not only do we have the Supreme Court case with 'remain in Mexico,' but Title 42 is being debated on Capitol Hill," said Sabrina Talukder of Loyola Law School, an expert on immigration and anti-trafficking. "The hope from the advocates' perspective is that if Biden v. Texas is granted in favor of the government, Title 42 will very easily be rescinded on the Hill."

U.S. District Judge Robert Summerhays, a Trump nominee in the Western District of Louisiana, said Monday he intends to temporarily block the rescission of Title 42. 

Breaking:Federal judge temporarily blocks Biden administration from lifting Title 42

Trump effect:For a time, immigration fell off the Supreme Court's docket in 2021

The Trump administration implemented the "remain in Mexico" policy, also known as Migrant Protection Protocols, in January 2019 as part of its effort to curb immigration and end what critics call "catch and release" policies. By the end of 2020, the Trump administration had enrolled 68,000 people in the program, according to court records.

Though Biden has reinstated the program, the administration appears to be relying on it far less: As of the end of February, 1,602 individuals were enrolled and 893 had been returned to Mexico, according to recent Department of Homeland Security testimony. 

Deterrent for illegal immigration? Or catalyst for trafficking?

The program permits authorities to send migrants, including those from Central America, to Mexico while they wait for an immigration court to review their case, a process that can take months. The policy has led to the creation of refugee camps along the border. Talukder and others say that has left migrants vulnerable to crime, including trafficking.

"Remain in Mexico has irrefutably enabled and fostered the conditions for human trafficking, both into the United States and along the U.S. border," Talukder said.

But others say the policy acts as a deterrent on illegal immigration. Officials in Texas and Missouri argue that most asylum claims are not granted and that letting applicants into the country on parole while their cases are considered incentivizes migrants to apply for asylum to enter the US and then disappear. 

"Tens of thousands of aliens unlawfully enter the nation’s southern border every month," the states wrote in a brief this month. "Many raise meritless immigration claims, including asylum claims, in the hope that they will be released into the United States."

Fulfilling a campaign pledge, Biden's DHS rescinded the program in June. Texas and Missouri sued, asserting the administration didn’t follow the law in unwinding the program because it didn’t explain its reasoning. A district court in Texas sided with the states and the Supreme Court in August declined to put that ruling on hold.

That forced the administration to restart the program while taking another stab at shutting it down. In October, after what officials called a "fresh evaluation process," DHS issued a 39-page memo describing the reasons for ending the policy. But the Louisiana-based U.S. Court of Appeals for the 5th Circuit ruled that the more thorough evaluation didn’t count as a new rescission and it kept the program in place.

Two questions, many implications

There are two questions at issue for the high court after Biden appealed that decision. One is whether the Fifth Circuit erred when it ruled that the more comprehensive analysis had no legal effect – essentially that it didn't count. A ruling could have profound implications for future presidents who seek to halt the policies of their predecessors.

Another question deals with how to interpret conflicting provisions of immigration law. The law requires DHS to detain migrants while their asylum claims are considered, but Congress hasn’t provided enough money to fulfill that mandate for all migrants. 

The law then gives the administration another option: Require asylum applicants to wait outside of the United States during that process. Texas and Missouri argue the government, if it cannot detain migrants, must send them to Mexico.

Biden officials "would prefer not to choose from the options Congress has provided," Texas and Missouri told the court. "They instead seek the power to release classes of aliens into the United States en masse. But Congress foreclosed that possibility."

The Justice Department rejects that argument, noting that presidents of both parties never interpreted the law to require all asylum seekers who can't be detained to wait in Mexico. Besides, the administration notes, the United States doesn't have unilateral authority to remove Central Americans to Mexico. It must negotiate that outcome.

The states, the federal government told the court this month, "cannot contest the dramatic foreign policy and constitutional implications of the court of appeals' conclusion that" the law "requires the executive to negotiate with foreign sovereigns."

Instead, the administration focuses on another provision of the law, which allows officials to "parole" some asylum seekers in the United States until their cases are heard. The executive branch, the Justice Department told the court, "has long determined that paroling some low-risk noncitizens achieves the significant public benefit of freeing limited detention space" for others that are high priorities for enforcement.  

A decision in the case is expected by early summer.