The Supreme Court gave the Biden administration permission to end the so-called “Remain in Mexico” immigration policy, which forced people seeking asylum in the U.S. to wait in Mexico for their hearings.
In a 5-4 vote, Chief Justice John Roberts was joined by fellow conservative Justice Brett Kavanaugh as well as the court's three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Roberts, writing for the majority opinion, said the Biden's administration's decision to terminate the Migrant Protection Protocol "did not violate federal immigration law." He said that an appeals court “erred in holding that the” federal Immigration and Nationality Act “required the Government to continue implementing MPP.”
Conservative justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented in the case known as Biden v. Texas.
President Joe Biden suspended the program on his first day in office. After Texas and Missouri sued, lower courts required immigration officials to reinstate it. The current administration has sent far fewer people back to Mexico than its predecessor.
At the heart of the legal fight is whether immigration authorities must send people to Mexico or have the discretion under federal law to release asylum-seekers into the United States while they await their hearings.
The issue with the statue is that it also instructs the government to detain asylum seekers. Congress has only appropriated enough funds to detain up to 40,000 people, a small fraction of immigrants seeking asylum.
In his concurring opinion, Kavanaugh noted that in general, when there is insufficient detention capacity, both releasing asylum-seekers into the United States and sending them back to Mexico “are legally permissible options under the immigration statutes.”
Texas Attorney General Ken Paxton said in a statement that the decision was “unfortunate.” He argued it would make “the border crisis worse. But it’s not the end. I’ll keep pressing forward and focus on securing the border and keeping our communities safe in the dozen other immigration suits I’m litigating in court.”
Those being forced to wait in Mexico widely say they are terrified in dangerous Mexican border cities and find it very hard to find lawyers to handle their asylum hearings.
About 70,000 people were enrolled in the program, formally known as Migrant Protection Protocols, after President Donald Trump launched it in 2019 and made it a centerpiece of efforts to deter asylum-seekers.
After Biden’s suspension of the program, Homeland Security Secretary Alejandro Mayorkas ended it in June 2021. In October, the department produced additional justifications for the policy’s demise, to no avail in the courts.
The program resumed in December, but barely 3,000 migrants had enrolled by the end of March, during a period when authorities stopped migrants about 700,000 times at the U.S.-Mexico border.
Meanwhile, the high court also ruled the same day to curb another agency's power. By a 6-3 decision, with conservatives in the majority, the Supreme Court said that the Clean Air Act does not give the Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants that contribute to global warming.
The court’s ruling could complicate the administration’s plans to combat climate change. Its proposal to regulate power plant emissions is expected by the end of the year.