SCOTUS Queries Lawyers in ‘Remain in Mexico’ Case About What Powers the Court Has

A week after oral arguments, the high court wants submissions on its remedial authority

A bus leaves a closed border facility as migrants subject to a Trump-era asylum restriction program were expected to begin entry into the United States at the San Ysidro border crossing with Mexico, in San Diego, Calif., on Feb. 19, 2021. Mike Blake/Reuters

A week after hearing oral arguments in two states’ challenge to President Joe Biden’s push to dissolve the Trump-era “Remain in Mexico” program that requires non-Mexican asylum-seekers arriving at the southern border to wait in Mexico for processing, the Supreme Court asked both sides to provide more briefing on its remedial powers.

Texas and Missouri argue that Biden is breaking the law by ending the program.

The case is Biden v. Texas, court file 21-954, an appeal from the U.S. Court of Appeals for the 5th Circuit. The Supreme Court’s hearing on the case was on April 26.

Upon assuming office, Biden halted enrollments in the program, part of the Migrant Protection Protocols (MPP) created by Congress when Bill Clinton was president to discourage individuals from making fraudulent asylum claims. The Trump administration announced in December 2018 that it would enforce the dormant program in order to curtail the practice known as catch-and-release, in which individuals would make fraudulent asylum claims knowing they would be let into the United States and be able to stay for years before their court appearance.

But when Biden assumed office, the Department of Homeland Security (DHS) issued a memorandum providing that it would “suspend new enrollments” in the MPP pending further review of the program. The memo said: “Aliens who aren’t already enrolled in MPP should be processed under other existing legal authorities.” Days later, Biden signed three new executive orders related to Trump-era immigration policies. One of the documents, Biden said, “orders a full review of the previous administration’s harmful and counterproductive immigration policies, basically across the board.”

But in August last year, at the request of Texas and Missouri, the respondents in the Supreme Court case, U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas ordered the government to continue enforcing the MPP policy until “lawfully rescinded.” The Biden administration had failed to properly justify ending the policy and failed to uphold a 1996 law requiring the detention of certain migrants, Kacsmaryk, a Trump appointee, found. The 5th Circuit affirmed.

The Biden administration told the Supreme Court on April 26 that it shouldn’t have to continue the “Remain in Mexico” program, as The Epoch Times reported.

U.S. Solicitor General Elizabeth Prelogar said Homeland Security Secretary Alejandro Mayorkas “exercised his statutory discretion to make a policy judgment” and “found that the benefits of MPP were outweighed by its domestic, humanitarian, and foreign policy costs.”

Texas Solicitor General Judd E. Stone II countered that the law generally requires that the United States detain migrants or send them back to Mexico. If it lacks the resources to detain them, it should return them to Mexico so they can wait there for asylum processing, he said.

But on May 2, the Supreme Court took the unusual step of asking the attorneys involved in the case to provide additional information to the court after hearing oral arguments. The unsigned order (pdf) directs the parties “to file supplemental briefs addressing the following questions: (1) Whether 8 U. S. C. §1252(f)(1) imposes any jurisdictional or remedial limitations on the entry of injunctive relief, declaratory relief, or relief under 5 U. S. C. §706. (2) Whether such limitations are subject to forfeiture. (3) Whether this Court has jurisdiction to consider the merits of the questions presented in this case.”

The briefs are due May 9, and reply briefs are due May 13.

Christopher Hajec, director of litigation at the Immigration Reform Law Institute (IRLI), a nonprofit public interest law firm that filed a friend-of-the-court brief (pdf) in the case on April 14, said the Supreme Court is requesting the extra briefing because it’s concerned about the ramifications of any actions it might take in the case.

“The district court here ordered MPP restored until the border was secure and all illegal aliens detained as required by statute,” Hajec told The Epoch Times by email. “That is within the remedial power of a district court, as the Supreme Court should recognize.

“But the Court is concerned whether a certain statute removes the lower courts’ jurisdiction. It doesn’t remove it—certainly not all of it. But if the Court were to find a complete lack of jurisdiction, it would have to vacate the district court’s order restoring MPP.

“The stakes are high; the administration has abdicated its duty to enforce the law, and the border crisis grows continually worse as a result. Courts should not be prevented from dealing with that lawlessness appropriately.”