Home "Migrant Protection Protocols" (MPP) Supreme Court Hears Oral Arguments in ‘Remain in Mexico’ Case

Supreme Court Hears Oral Arguments in ‘Remain in Mexico’ Case

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The U.S. Supreme Court on Tuesday held arguments on Texas’s lawsuit against the federal government for ending the Migrant Protection Protocols, commonly known as the “remain in Mexico policy.”

As Breitbart News reported:

The MPP is a Trump-era immigration policy that requires migrants seeking asylum in the U.S. to wait in Mexico for their U.S. court hearings. Biden suspended the MPP on his first day in office, and then his Department of Homeland Security Secretary, Alejandro Mayorkas, issued a memo terminating the policy last June.

However, the U.S. Court of Appeals for the Fifth Circuit in December upheld a lower court’s order that required Biden to reimplement the MPP “in good faith.”

Biden appealed the Fifth Circuit’s decision to the U.S. Supreme Court, which resulted in Tuesday’s oral arguments.

U.S. Solicitor General Elizabeth Prelogar argued that the district court’s decision that held the termination of the MPP unlawful had “grave and serious foreign policy implications.” She further argued that the Biden administration has the discretion whether to send the migrants back to Mexico because one provision of the text says the Attorney General “may” return an alien to their home country. However, Justice Clarence Thomas brought up Texas’s arguments that point to another provision of the law that says an alien “shall” be detained.

Chief Justice John Roberts spoke hypothetically and said if he agrees with Biden’s lawyers in that they cannot detain every migrant, despite Congress’s intent, then the Court would be “in a position where the facts have sort of overtaken the law.”

“If you have a situation where you’re stuck because there’s no way you can comply with the law and deal with the problem there, I guess I’m just wondering why that’s our problem?” Said Roberts, who is thought to be a swing vote in this legal challenge.

“Our problem is to say what the law is. And if you’re in a position where you say, well, we can’t do anything about it, what do we do?” Roberts asked.

Prelogar, who agreed that this is not the court’s problem, responded to Roberts’ hypothetical by calling on the court to support a judicial order that says the administration needs to detain more people.

Justice Sonia Sotomayor, with support from Justice Neil Gorsuch, asked Prelogar whether she believes her interpretation of federal law eliminates declaratory judgment rulings, which is when the court determines the parties’ legal rights.

“Our view is that it — that it also could foreclose review of declaratory relief, but I recognize the Court could conclude otherwise,” Prelogar said.

Justice Brett Kavanaugh questioned Prelogar about Congress’s intent, asking, “Is there any indication in connection with the ’96 Act that anyone in Congress expected that if there were — was not sufficient detention capacity, that hundreds of thousands of people would be just paroled into the United States without being lawfully admitted?”

“So I think that history actually shows that Congress here wasn’t thinking that contiguous territory return would — would be the solution to this issue. Instead, they were focused on expedited removal to do so,” Prelogar responded.

Justice Brett Kavanaugh, another likely swing vote in this case, spent a considerable amount of time questioning the definition of “significant public benefit,” as written in Mayorkas’s October revocation of MPP memo.

“The other issue is I don’t see — and this follows up on Justice Barrett’s questions – any real explanation in the October memo of what “public” means and “significant public benefit.” Is that the American public? Is that the non-citizen public? Who is that?” Kavanaugh asked.

“And if it’s the American public, there’s no real explanation of how the public is benefitted by more people coming into the United States who are not lawfully admitted into the United States rather than trying, if feasible, for some of those people to remain in Mexico,” he continued.

“I’m not saying what the best exercise of policy discretion is there. I’m saying I think the October memo doesn’t quite get into what is public benefit, what does it mean, how are we supposed to assess that.”

Prelogar’s response attacked the MPP and said that Kavanaugh’s concerns about the public benefit would not go away, even if the program remained intact.

“I think, again, I want to make clear that it’s not as though, to the extent you have concerns about significant public benefit, that MPP cures those concerns. There are inherent limits on the number of people we can enroll,” Prelogar said.

Chief Justice Roberts questioned Texas Solicitor General Judd Stone about the merits of the state’s arguments, saying that “it’s a bit much for Texas to substitute itself for the Secretary.”

“Well, Congress may want detention but it hasn’t come up with the money to make — to provide more beds, right?” Roberts asked.

I mean, it gets back to General Prelogar’s point, which is it’s not going to make a difference. You can have MPP and send a limited number of people back to Mexico, although I gather that requires the consent of the Mexican government. And I don’t know if that’s going to be forthcoming or not. And then there’s a limited number of beds. I mean, it may mean that it’s difficult for them to comply with the law, but what good do you think will come from a requirement that the — the — the government keep MPP in place?

In response, Stone said that fewer violations of federal law are better than more.

“The United States is required to attempt to comply, even in the face of limited resources, as best it can with the resources it’s been appropriated,” Stone said.

Roberts then said:

The only — the only point I would make is that that remains true, but given their termination of MPP, the most that does as I can see it is make it more difficult for them to comply with the law. I think it’s a bit much for Texas to substitute itself for the Secretary and say that you may want to terminate this, but you have to keep it because it will reduce to a slight extent your violations of the law.

Stone pointed out in his reply that “Texas isn’t seeking injunctive relief to require the administration to take any particular view — any particular view of the immigration policy.”

The Supreme Court’s decision in this case is expected to come in June.

The case is Biden v. Texas, No. 21-954 in the Supreme Court of the United States.

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