WASHINGTON — Courts can’t force President Joe Biden to abide by former President Donald Trump’s “Remain in Mexico” policy indefinitely, especially since it puts vulnerable migrants in danger and hampers foreign relations.
The Justice Department pressed that claim in a filing submitted Tuesday to the Supreme Court in a clash with Texas and Missouri, which so far have managed to frustrate Biden’s efforts to erase a Trump-era policy that keeps asylum seekers from setting foot on American soil.
The Supreme Court will hear arguments next Tuesday on the case, a skirmish in a deeply partisan fight that include Gov. Greg Abbott’s recent provocations — busing migrants to the nation’s capital and ordering truck inspections that snarled cross-border trade for 10 days and putting an estimated $4.2 billion dent in the Texas economy.
The Justice Department called it “unprecedented” for courts to force the Department of Homeland Security to retain a policy it has twice determined is not in the country’s interests, and which has “imposed unjustifiable human costs on migrants facing extreme violence in Mexico.”
U.S. asylum law makes it difficult to quickly deport anyone already inside the country, even by a few feet, once they request asylum.
Trump asserted that countless migrants have long exploited that, remaining for years with bogus claims. He adopted the Remain in Mexico policy in January 2019, at the halfway mark of his presidency.
Activists on both sides view the case, Biden vs. Texas, as a major test of executive authority and a potential turning point on migration policy.
Biden began to unwind Trump’s policy, formally called the Migrant Protection Protocols or MPP, on Inauguration Day.
Within a few months, thousands of asylum seekers stuck at refugee camps in Matamoros and other border cities were processed and allowed into the United States.
The Department of Homeland Security fully rescinded MPP on June 1.
Texas and Missouri sued.
In a brief submitted this month ahead of oral arguments, they asserted that Biden wants to unleash into the country tens of thousands of people who cross the border each month illegally, many raising “meritless immigration claims,” because he finds the rules he inherited from Trump “politically uncongenial.”
On August 15, a federal judge in Amarillo ruled that DHS hadn’t followed proper procedures and ordered it to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded.”
Judge Matthew Kacsmaryk, a Trump appointee, added another requirement that has rankled the Biden administration, ordering MPP to remain in force until the federal government has enough capacity to detain all migrants subject to detention – an exceedingly remote goal put even more out of reach as migration spikes to record levels.
The Justice Department, in Tuesday’s filing, called it a “revolutionary” order, arguing that Congress knows full well that “universal detention would require enormous resources, which it has not provided,” and that in any case, the 25-year-old law at issue doesn’t require it.
If the Supreme Court embraces the idea, the implication for a system that’s already overwhelmed would be far-reaching.
Texas attorney general Ken Paxton, in the state’s brief earlier this month, argued that even if “DHS may sometimes be unable to fully comply with Congress’s directives [that] does not excuse DHS where it is merely unwilling.”
The New Orleans-based 5th Circuit Court of Appeals upheld the lower court.
Homeland Security Secretary Alejandro Mayorkas issued a new memo terminating MPP for a second time on Oct. 29.
“The Secretary lawfully exercised his statutory discretion to terminate MPP,” the Justice Department argued in the brief filed Tuesday.
The courts again blocked the administration.
The Supreme Court agreed in February to hear arguments next week.
A ruling is expected by late June or early July. Retiring Justice Stephen Breyer will remain on the court until then, at which point his newly confirmed successor, Judge Ketanji Brown Jackson, will join the court.
The Biden administration began negotiating with Mexico to reinstate the policy, which it did on Dec. 2, with tweaks: Migrants got better access to lawyers, and a Trump-era gag rule on Border Patrol agents was lifted, allowing them to proactively ask migrants if they feared for their safety in Mexico.
There has never been enough detention capacity. That goal is further from reach than ever, with
Border encounters hit 1.7 million in the fiscal year that ended on Sept. 30, a record. And since Oct. 1, the tally is already 1.2 million, according to Customs and Border Patrol data released Monday
In March, authorities encountered 159,900 individual migrants at the Southwest border, some more than once, a 37% jump over February.
Critics blame lax enforcement and Biden’s efforts to roll back restrictions for the surge. Defenders point to improved job prospects as the pandemic-induced slump eased, arguing that – plus Trump’s defeat – unleashed two years of pent-up demand.
Half of the migrants caught in March were expelled under Title 42, a public health measure invoked under Trump due to COVID-19 and renewed under Biden to the dismay of immigration advocates.
The Centers for Disease Control and Prevention has lifted Title 42 effective May 23, which will put an even bigger spotlight on the use of Remain in Mexico.
The Center for Immigration Studies, which wants to restrict migration, calls Remain in Mexico one of the most effective tools yet created to deter migrants seeking work from being able to “exploit” asylum laws.
Asylum claims require a credible fear of returning to one’s home country. Seeking opportunity doesn’t count.
The cities of Dallas and Houston joined 23 other local governments from around the country in support of Biden’s bid to overturn MPP.
In a friend of the court brief, those cities and counties argued that even if curbing migration is a worthy goal, this policy imposes “an unjustifiable cost” by creating “dangerous and intolerable conditions at the border” for migrants “fleeing violence and persecution.”
The cities also call it unjust to keep asylum seekers on the other side of the border, away from legal help that would enable them to pursue legitimate claims.
“Many amici have invested significant resources in local initiatives that provide pro bono legal services for immigrants,” they argue.
Among the groups siding with Texas is the America First Legal Foundation, founded by the architect of Trump’s immigration policies, Stephen Miller.
Its friend of the court brief presses hard on the argument that Biden’s DHS didn’t take into account the benefits. MPP deters migration, curbs “meritless asylum claims” and provides “the ultimate backstop against the practice commonly referred to as `catch-and-release,’” whereby migrants nabbed at the border are allowed to stay in the United States to await a hearing.
“Failing to consider those benefits was not only arbitrary and capricious — as noted by Fifth Circuit and the District Court below — but also egregious when considering the immigration system as a coherent whole. Indeed, Congress…charged the Executive Branch not just with apprehending and processing aliens encountered at the border, but also with actually removing them” unless they qualify for asylum, the group argued.
That echoed Texas’s assertion that in his haste to overturn Trump’s rule, Biden moved without any “meaningful review” as required by law.
