One thing everyone at the Supreme Court seemed to agree with on April 26 is that Congress has done a poor job of legislating immigration. The Court heard almost two hours of arguments — double its usual case time — on the Migrant Protection Protocols (MPP), also known as President Donald Trump’s Remain in Mexico policy. If the Supreme Court is as deferential to the current administration’s decisions on immigration as they were to Trump’s, then the White House may well win this case, Biden vs. Texas

Discretion or Direction?

The law “[c]ontains a discretionary authority that the Secretary may use, not a mandate,” said Solicitor General Elizabeth Prelogar, who argued the case for Biden, adding that before this lawsuit, no one interpreted the law to mean anything else. Prelogar stated that if Texas and Missouri’s view of the law were accurate, then “every presidential administration, in an unbroken line for the past quarter-century, has been in open violation of the [law].”

Judd Stone, the Solicitor General from Texas who argued the case against the administration, agreed that no administration has likely ever complied with the law. Justice Clarence Thomas asked him, “Wouldn’t it be odd for Congress to leave in place a statute that would appear to be impossible to comply with?” Stone replied no, the Executive was obligated to “do the best it can with” the resources Congress has allocated.

Remain in Mexico

The Trump administration devised the Remain in Mexico policy to deter migrants from streaming into the United States with asylum claims. Before President Trump changed the policy, most asylum seekers presenting themselves at our southern border were released into the United States to await a hearing on their claims. Often, they did not show up for that hearing and simply went about their lives as one of the many millions of illegal immigrants in the United States. Trump’s policy prevented all these applicants from entering the country as they had previously. As the policy nickname implies, these people waited in Mexico while their applications were pending.

(Photo by Chip Somodevilla/Getty Images)

Federal law says that when migrants arrive at the border with an asylum claim, they are to be detained until the claim is evaluated. However, Congress has never provided enough detention space and infrastructure. Texas and Missouri said if there is no space to confine them in the United States, then they cannot be admitted. The Biden administration argued that without sufficient capacity to detain them, the administration may, at its discretion, admit the applicants to the United States while their applications are pending.

Biden campaigned on ending the Trump policy, arguing it created a humanitarian disaster for the applicants while in Mexico, and suspended it after taking office. Texas and Missouri sued and won on two bases. The lower courts ruled that the law required applicants to be kept out of the country if they were not going to be detained within. Also, the courts said Secretary Alejandro Mayorkas of Homeland Security did not adequately explain his decision to end the MPP program, violating administrative procedure law.

The Biden administration urged the justices to decide this case quickly, which the Court agreed in February to do, fast-tracking the case for oral argument. A decision is expected soon, before the Court’s summer recess.