SCOTUS Hears Argument in Title 42 ‘Remain In Mexico’ Policy Repeal Case

The U.S. Supreme Court heard oral argument on Tuesday in the battle over the Biden administration’s efforts to end one of the Trump administration’s signature immigration policies.

Amy Howe reports at SCOTUSblog, Tough questions for both sides in dispute over “remain in Mexico” policy:

The lower courts [Trump-appointed judge orders Biden administration to reinstate Trump’s ‘remain in Mexico’ policy] ordered the Biden administration to reinstate the controversial policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. courts. During nearly two hours of oral argument in Biden v. Texas, the justices appeared torn on whether the Biden administration must maintain the so-called “remain in Mexico” policy, which is formally known as the Migrant Protection Protocols.

Some justices suggested that the decision to end the policy was inconsistent with federal immigration law, and they expressed doubt that Congress intended to allow the release of large numbers of asylum seekers into the United States. But on the other hand, members of the court – including some conservative justices – challenged the idea that Texas and Missouri could ask a federal court to require the Biden administration to maintain the program, particularly when doing so requires the cooperation of the Mexican government.

Representing the Biden administration, U.S. Solicitor General Elizabeth Prelogar told the justices that Homeland Security Secretary Alejandro Mayorkas had opted to end the MPP after determining that the program’s benefits “were outweighed by its domestic, humanitarian, and foreign policy costs.” It was, Prelogar stressed, an exercise of “his statutory discretion to make a policy judgment.”

By contrast, Texas Solicitor General Judd Stone emphasized that under federal immigration law, the government has three options for asylum seekers who arrive at the U.S. border. It can decide on a case-by-case basis to temporarily allow them into the United States, it can return them to Mexico or Canada if they have arrived by land, or it can hold them in a U.S. detention center while they wait for a hearing. The Biden administration has to choose one of those options, Stone stressed, and ending MPP would mean that the Biden administration is violating federal law.

Several justices, including Justice Clarence Thomas, focused on the statutory scheme. Texas and Missouri, he noted, argue that federal immigration law – by providing that DHS “shall detain” noncitizens – creates a presumption of detention, subject to the other two options. Congress’ use of “shall,” Thomas suggested, eliminates the possibility of any discretion for DHS: It has to choose one of the options.

Justice Samuel Alito echoed this line of thinking, noting that in another case involving whether immigrants who have been detained have the right to periodic bond hearings the federal government had argued that the phrase “shall be detained” meant that detention was mandatory.

Prelogar pushed back, noting that “DHS does not have sufficient capacity to detain everyone who could be subject to detention.” Moreover, she added, in the provision that specifically deals with the return of asylum seekers to Mexico or Canada, Congress indicated that DHS “may return” [discretionary] noncitizens. The law, she told the justices, “didn’t create the kind of mandate that” Texas and Missouri “are now reading into the statute.”

Justice Brett Kavanaugh also expressed skepticism about the government’s contention that, because it cannot detain all asylum seekers who arrive at the border, it therefore has discretion to decide how to deal with the many people it cannot detain. Is there any indication, he asked Prelogar, that if there wasn’t enough space to hold them, Congress expected hundreds of thousands of people to be released into the United States without being legally admitted?

Chief Justice John Roberts acknowledged that he was “sympathetic” to the Biden administration’s inability to detain everyone who qualifies. But, he added, “what are we supposed to do? It’s still our job to say what the law is.” Roberts was even more forceful a few minutes later, telling Prelogar, “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?”

Prelogar urged the court to focus on what she characterized as the “central issue in this case”: the proper interpretation of the provision of federal immigration law indicating that DHS “may return” asylum seekers who arrive by land to Mexico or Canada to wait for a hearing. “And none of those concerns about detention and release could in any sense justify transforming that position, contrary to Congress’ plain language, the ‘may return’ language, with all of the consequences that would have for our foreign relations,” she concluded.

Stone also met with resistance – including from some of the same justices – to the states’ interpretation of the statutory scheme. Broaching a point made by the Biden administration in its brief, Thomas asked Stone whether, on the states’ interpretation of federal immigration law, any presidential administration – Republican or Democratic – had complied with the statutory scheme requiring DHS to choose between the three options for asylum seekers. When Stone responded that none had complied, Thomas suggested that it would “be odd for Congress to leave in place a statute that would appear to be impossible to comply with.”

Justice Sonia Sotomayor chimed in, contending that “when Congress knows that something’s happening and it responds or it fails to respond, that tells us something about its intent.” In this case, she observed, the “shall detain” language has been in effect for over a century without any administration attempting “to detain every single illegal immigrant.” Perhaps, she suggested, when Congress neither provided the resources to detain everyone who qualifies nor passed legislation to require everyone to be detained even without the resources, no matter how “inhumane,” “we should accept what the practices have been through generations of presidents.”

Kavanaugh turned to what he described as the “heart of this case”: the provision of federal immigration law allowing DHS to temporarily release noncitizens into the United States on a case-by-case basis when doing so would provide a “significant public benefit.” DHS has long determined, Kavanaugh observed, that allowing noncitizens who are “not too dangerous” into the country to free up limited detention space for people who are a high priority for detention – for example, noncitizens with a criminal record – confers a significant public benefit. If the administration has three options under federal law, one of which is the possibility of releasing the asylum seeker into the United States if doing so will provide a significant public benefit, Kavanaugh queried, then “why can’t an administration say ‘significant public benefit is triggered in this situation,’” allowing it to avail itself of that option?

Justice Amy Coney Barrett signaled her agreement. If the Biden administration is correct about what “significant public benefit” means, and the need to prioritize spaces in detention centers, she said to Stone, “you lose, right?”

But the argument also focused on the bigger picture – and in particular some justices’ concerns about federal courts overstepping their boundaries and interfering in foreign relations and policy decisions by the executive branch.

Roberts asked Stone to address Prelogar’s contention that reinstating MPP would only “send a limited number of people back to Mexico,” while at the same time requiring the U.S. government to coordinate with the Mexican government. “What good,” Roberts asked, “do you think will come from a requirement that the government keep MPP in place?” When Stone responded that it would result in fewer violations of federal immigration law, Roberts shot back, “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 sought to portray the claims that Texas and Missouri have brought as “garden-variety” claims that the federal government has not complied with the laws governing administrative agencies. But Justice Elena Kagan wasn’t buying it. It does not, she admonished him, “really seem like a garden-variety” claim “to basically tell the executive how to implement its foreign and immigration policy. And that’s what this does,” she contended. “You’re putting the secretary’s immigration decisions in the hands of Mexico,” because the United States can only comply with the lower courts’ orders if Mexico agrees to cooperate.

Prelogar tried to hammer this point home in her rebuttal, reiterating the “extraordinary nature of the district court’s injunction,” – “particularly,” she said, “with respect to its effects on foreign relations.” Under the district court’s order, she explained, the Biden administration needs “to get Mexico’s consent to operate” MPP, giving the other country “an important point of leverage.” Returning asylum seekers to Mexico under the MPP, she told the justices, requires a “massive cross-border program,” with everything from housing and access to lawyers to security and transportation. “The idea,” she concluded, “that there is a single district court in Texas that is mandating those results … shows that something has powerfully gone awry here. This is not how our constitutional structure is supposed to operate. And this is not the statute that Congress drafted.”

We’ll know by summer whether there are five justices who agree with her.

Ian Millhiser at Vox adds, The Supreme Court seems fed up with a Trump judge who sabotaged Biden:

Matthew Kacsmaryk, a Trump appointed judge in Texas who essentially seized control of much of the United States’ southern border policy, appears likely to join the small cohort of Republican judges who went so far out on a limb that even this Supreme Court will not tolerate their behavior.

Last August, Kacsmaryk ordered President Joe Biden’s administration to reinstate Title 42, a Trump-era policy colloquially known as “Remain in Mexico,” which requires many migrants who arrive at the US-Mexico border to stay in Mexico while their asylum case is pending in the United States. But Kacsmaryk read federal immigration law so narrowly that even President Donald Trump’s version of this program wasn’t harsh enough to comply.

Indeed, as Texas Solicitor General Judd Stone conceded during an exchange with Justice Clarence Thomas on Tuesday morning while the Supreme Court was hearing the case, under Kacsmaryk’s reading of federal law, no administration has ever complied with that law since it was enacted in 1996.

The case is Biden v. Texas, and it concerns what options are available to the federal government when it is confronted with an asylum seeker at the Mexican border. Under Kacsmaryk’s incorrect interpretation of federal immigration law, the government only has “two options vis-à-vis aliens seeking asylum: 1) mandatory detention; or 2) return to a contiguous territory.”

Kacsmaryk’s reading isn’t just wrong, it is obviously wrong. On its face, federal immigration laws give the government at least four options when confronted with an asylum seeker at the Mexican border. It can do what Kacsmaryk says, or it can grant parole to someone seeking admission to the United States “for urgent humanitarian reasons or significant public benefit.” And, when parole isn’t available, the government can also release an immigrant into the United States on “bond of at least $1,500.”

As Justice Brett Kavanaugh noted during the oral arguments, the case largely turns upon the proper meaning of the words “significant public benefit.” Arguing on behalf of the Biden administration, US Solicitor General Elizabeth Prelogar said that these words permit the government to reserve its limited detention space for immigrants who present a danger to the public or who might be a flight risk, and to parole other immigrants.

It’s debatable whether Prelogar offered the best possible interpretation of this statute, but her case was bolstered by the fact that Stone was unable to offer a coherent alternative interpretation. At one point in the oral arguments, at least five different justices, including conservatives Kavanaugh and Amy Coney Barrett, seemed to take turns castigating Stone for being unable to provide a coherent answer to one of the most important questions in the case.

Stone’s inability to offer a good answer to this question, combined with the fact that his interpretation of the law would lead to truly absurd results — as Justice Elena Kagan noted in a particularly heated contention with Stone, Texas’s reading of the law could give the Mexican government significant power to extort the United States — seems to have been enough to convince most of the Court that Kacsmaryk must be reversed.

That said, it remains likely that the Court will send the case back to Kacsmaryk to resolve some lingering issues. And, given Kacsmaryk’s past performance, it seems overwhelmingly likely that he will bend over backward to rule against the Biden administration — no matter what the law actually says.

It may be quite a while, in other words, before President Joe Biden and his administration regain their lawful authority to end the Remain in Mexico policy.

Kacsmaryk seized control over much of the United States’ foreign policy

Under Kacsmaryk’s incorrect reading of the statute, the United States must either return every asylum seeker who arrives at the Mexican border to Mexico, or detain them at a facility within the United States. But the United States has only a fraction of the detention facilities it would need to detain every single asylum seeker — at one point Tuesday, Chief Justice John Roberts quipped that the federal government may only have enough detention capacity for 2 percent of the relevant population.

That means the country has to do something about the other 98 percent of migrants, and, under Kacsmaryk’s approach, they must be returned to Mexico.

But that approach creates an obvious problem. The Mexican government must consent before the United States can send a flood of asylum seekers back across its border, and if it does not consent, that means that the United States could not possibly comply with the law — at least as Kacsmaryk understands it.

The other problem is that, if Mexico knows that the United States government is under a court order requiring it to return Central American migrants to Mexico, it can demand extraordinary concessions before it permits the US to do so.

As Kagan pointed out, “Mexico can change its mind any day.” It can make one set of demands today, then make another, more onerous set of demands tomorrow. If the Biden administration believes that it is not in the United States’ interest to comply with Mexico’s demands, its only option is to seek relief from a right-wing judge known for his extreme ideology. (Kacsmaryk, previously a lawyer with a Christian conservative law firm, once labeled being transgender a “mental disorder,” claimed that gay people are “disordered,” and denounced what he called a “sexual revolution.”)

The Supreme Court, moreover, has long warned judges not to get involved in these kinds of foreign policy disputes. As the Court said in Kiobel v. Royal Dutch Petroleum Co. (2013), judges should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”

The Supreme Court bears much of the blame for placing the United States in this precarious position with Mexico. Last August, the Court handed down a surprising order which left Kacsmaryk’s decision in place while the case worked its way through appeals. That means that, for the last several months, the Remain in Mexico policy has been in place, and the United States has been forced to deal with Mexico — under threat of a contempt order from Kacsmaryk.

Now, however, a majority of the Court appears to be ready to reject at least some of Kacsmaryk’s reasoning.

What does “significant public benefit” mean?

No justice appeared sympathetic to Kacsmaryk’s claim that the United States only has two options when an asylum seeker arrives at the Mexican border. Even Justice Samuel Alito, the Court’s most reliable Republican partisan, seemed to concede that federal law permits some asylum seekers to be granted parole — although he insisted that this determination must be made on a “case-by-case” basis.

But, as Solicitor General Prelogar explained, the government does make these determinations on a case-by-case basis. Asylum seekers are interviewed by immigration officials, they must submit to a background check, and they are screened to see if they’ve ever entered the United States before and fled immigration officials.

The purpose of this process is to identify immigrants who may either present a danger to Americans or who might be a flight risk, and thus should not be granted parole.

Prelogar spent much of her argument time responding to questions about whether a statute permitting immigrants to be granted parole “for urgent humanitarian reasons or significant public benefit” was broad enough to permit parole to be granted to the tens of thousands of asylum seekers who cannot be detained because the government lacks the capacity to detain them.

Under Prelogar’s argument, the public benefits from ensuring that the government’s limited detention capacity is reserved for “high-priority” cases, such as for immigrants suspected of violent crimes or terrorism. And the public also benefits if the United States does not have to make concessions to Mexico in order to maintain the Remain in Mexico program.

Stone, meanwhile, struggled to offer an alternative interpretation of the words “significant public benefit.” At one point, after he spent several minutes bobbing and weaving in the face of multiple justices’ questions trying to pin him down on this issue, Justice Barrett seemed to cut him off — telling him that these are questions “which you have to surmount” to prevail.

Kavanaugh seemed to believe that the words “significant public benefit” are sufficiently ambiguous that it may make sense to simply defer to the Biden administration’s interpretation of them. We “give a lot of deference to agencies” on these sorts of interpretative questions, Kavanaugh told Stone.

If Kavanaugh and Barrett vote with the Biden administration, it’s difficult to see how Stone could prevail. And Chief Justice Roberts, who told Stone at one point that “Congress may want detention but it hasn’t provided the money” to detain everyone, also seemed inclined to vote with the administration.

So that’s good news, both for asylum seekers and for anyone who believes that policy should be set by an elected president and his administration, and not by unelected judges like Kacsmaryk.

But there is one catch.

This case could still go on for a long time

Though Tuesday’s arguments largely focused on Kacsmaryk’s misreading of the statute, there’s also another issue lingering in this case. When the government makes a policy change, it typically must explain why it did so. The Supreme Court’s August order allowing Kacsmaryk’s order to remain in effect suggested that the Biden administration did not adequately explain its decision to end the Remain in Mexico policy — though the administration released a new memorandum in October that offers a more detailed explanation.

Some of the justices, most notably Kavanaugh, asked some questions suggesting that they might send the case back down to Kacsmaryk to determine whether this October memorandum is sufficient to end Remain in Mexico. And, if Kacsmaryk gets his hands on this case again, he’s likely to seize that opportunity to sabotage the Biden administration one more time.

Alito — and to a lesser extent Justices Thomas and Neil Gorsuch — asked a few questions about a jurisdictional question that the Biden administration mentioned in a footnote in its brief. This may be an effort by Alito to draw this case out even longer by ordering the parties to submit additional briefings on this jurisdictional issue before the case can be resolved.

And, for every minute that the Court leaves this case unresolved, Kacsmaryk’s order remains in effect.

It is possible, in other words, that even if the Republican Supreme Court ultimately allows President Biden to set policy compliant with federal law, they may try to delay their resolution of the case to frustrate him a little while longer.

This is Republican sabotage of the government by Republican appointed judges – exactly what the Grim Reaper of Democracy, Senate Minority Leader Mitch McConnell, and far-right extremist organizations like the Federalost Society, Judicial Watch, and the [Confederate] jheritage Foundation. It is all about the far-right’s attempt to undermine the Constitution and the rule of law to impose their fascist goals.