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Ending Remain in Mexico Is a Victory, but the Court’s Ruling Isn’t All Good


The Supreme Court ruled the Biden administration can end the program, but opened the door to future trouble

Jul 11, 2022


Straight-on view of the U.S. Supreme Court, somewhat lit in the foreground with ominous storm clouds gathering behind.

The U.S. Supreme Court ruled last week that the Biden administration can end the Remain in Mexico program, a Trump-era policy that forced asylum seekers to wait in Mexico for their U.S. immigration cases.

The Court ruled 5-4 against the state of Texas, which led the lawsuit attempting to block the government from ending Remain in Mexico, formally called the Migrant Protection Protocols (MPP). The Court rejected the states’ argument that a 1996 law requires MPP, which was created by the Trump administration in 2019.

The case involved three somewhat contradictory laws regarding when the government “shall detain” or “may return” migrants who attempt to enter the U.S., and whether the government can release migrants into the U.S. while they wait for their hearings “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

Congress has never allocated enough money to detain the number of people who would be required under the “shall detain” law, and the requirement the federal court in Texas read into the statute that the government “must” return migrants to Mexico was not only inconsistent with the plain language of the law, but also tied the federal government’s hands in matters of foreign policy.

Additionally, the Court found that one of the sections of law in question means that federal district and appeals courts can hear cases challenging unlawful immigration enforcement policies, but they cannot “enjoin or restrain” those policies. The implications of this change are huge: federal courts can no longer bar illegal policies from taking effect before they are accepted for review by the Supreme Court, which annually accepts about 1% of cases submitted to it.

On the one hand, this ruling likely means an end to many of the federal court orders that have come out in the past year blocking the Biden administration’s immigration policies. However, the decision could also make it harder for advocates to stop other illegal and harmful policies enacted by future administrations from going into effect. Immigrants and advocates relied on the injunction process at the federal courts to stop harmful and potentially illegal policies from taking effect during the administration of former President Donald Trump, such as the expanded 2019 public charge rule, or the drastic fee increases the former administration intended to impose on citizenship applications.

One of President Joe Biden’s campaign promises was to end MPP, and his administration tried to cancel the program in early 2021. However, the states of Texas and Missouri sued to keep Remain in Mexico in place, and in August 2021 a federal judge in Texas ruled that immigration laws required the U.S. to return asylum-seekers to Mexico whenever the federal government lacked the resources to detain them — even if the asylum-seekers were not Mexican citizens.

It was that federal court decision the Supreme Court overturned last week, now sending the case back to the district court.


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