Tomorrow, Tuesday, the Supreme Court will hear oral arguments in an immigration case that threatens to curb the power of presidents to reverse the policies of their predecessors at the border and beyond.
The case centers on the Biden administration’s attempt to end the “Remain in Mexico” policy. The Trump administration launched that policy in early 2019, forcing migrants to wait in dangerous areas of northern Mexico for decisions on their immigration cases to the United States.
Lower courts have ruled that the Biden administration did not play by the rules when it attempted to fulfill a campaign promise and suspend that policy on humanitarian grounds. Those courts ordered reinstatement of the policy, which remains in place.
The Justice Department has warned the Supreme Court that if the justices decide the Biden administration cannot end the policy, it could set a legal precedent that ties the hands of the executive branch on immigration and foreign affairs. Immigrant advocates argue that a broader ruling by the court’s conservative wing could even limit the ability of future presidential administrations to reverse the policies of their predecessors in other areas.
“It would have far-reaching implications in administrative law: everything from environmental regulations to national road and highway safety regulations, aviation issues, food safety and drug safety,” said Elora Mukherjee, director of the Immigrant Rights Clinic. at Columbia Law School. “The importance of this case before the Supreme Court cannot be overstated.”
The high court will also consider what the law requires immigration officials to do with migrants crossing the border, particularly since Congress has not appropriated enough funds to detain them all.
Republican officials from Missouri and Texas filed the lawsuit to end the policy, which is now the first major immigration case to reach the high court since President Joe Biden took office. And like several successful immigration cases before it, it addresses an administrative law issue that has far-reaching consequences.
Human Rights First documented more than 1,500 murders, rapes, kidnappings, and other attacks against migrants enrolled in the program during the Trump administration. Federal Judge Matthew J. Kacsmaryk of the Northern District of Texas ruled in August that the administration did not sufficiently explain its reason for ending the program and ordered him to reinstate it.
He also said the administration violated a 1996 provision of the federal immigration statute by failing to detain and turn back immigrants crossing the border. The Biden administration appealed. Homeland Security Secretary Alejandro Mayorkas later released a 39-page memo in which he outlined his concerns about the policy and reasons for rescinding it, including “substantial and unjustifiable human costs to migrants.”
But a three-judge panel of the United States Court of Appeals for the Fifth Circuit sided with the states and refused to consider the Mayorkas memo.
The appeals court also upheld the lower court’s conclusion that the immigration statute actually requires the federal government to return to Mexico any migrant it cannot detain.
The Supreme Court agreed to take the case just a few months ago. The Justice Department has argued that lower courts misread the federal immigration statute. The appeals court also “disregarded basic principles of administrative law” by refusing to consider further explanation, government lawyers said.
Texas and Missouri, backed by reports from conservative legal groups, including one led by former Trump adviser Stephen Miller, have responded that federal immigration laws require the United States to detain migrants crossing the border, either in detention centers or detention or outside the United States.
If the judges rule that the subsequent Mayorkas memo cannot be considered, it could create a “single rule” for any federal agency that wanted to reverse policies made under previous administrations, said Karen Tumlin, founder and director of the Justice Action Center. who defended the Deferred Action for Childhood Arrivals, or DACA, program in superior court two years ago. “It basically comes with a warning gun: you have one chance to undo the policy. If even one judge anywhere thinks you didn’t do well, then you can’t go back,” Tumlin said. A ruling in favor of Texas and Missouri could also have sweeping consequences for how asylum is processed at the border.
Tuesday’s hearing comes as the Biden administration faces increased pressure from Congress over how to manage the southern border, which is experiencing unprecedented levels of migration.
At the close of this information it was learned that Missouri Attorney General Eric Schmitt said he had obtained a temporary restraining order that prevents the Biden administration from revoking Title 42, a public health order that has allowed the Government Federal quickly remove immigrants and asylum seekers from March 2020.
The lawsuit was originally filed by Missouri, Louisiana, and Arizona in the United States District Court in Louisiana. “It’s really important for our national security, for our border security. It’s one of the few things the Federal Government is supposed to do: secure the border,” Schmitt told Fox News last week.
