By a 5-4 decision, the Supreme Court upheld a Biden administration claim that it had the authority to end the Trump administration’s “Remain in Mexico” policy. The policy, formally known as the Migrant Protection Protocols (MPP), forced illegal immigrants to return to Mexico to await the outcome of their asylum requests.
Biden had been trying to eliminate MPP since he entered office, but lower courts blocked those efforts after Texas and Missouri sued to keep them in place.
The court said that Biden did not violate the Immigration and Nationality Act by not keeping illegal aliens seeking asylum in Mexico until their cases were adjudicated. The lower court ruled that the statute requires that migrants be detained or sent back if they arrived from a contiguous country.
The majority disagreed.
The court’s majority pointed to the language in the law that says the government “may return” migrants to a contiguous territory, noting the “discretionary” nature of the wording. While all sides agreed on that, it was the states’ interpretation – and that of a lower court ruling — that a return is required if a person is not detained that the court disputed.
“The problem is that the statute does not say anything like that,” Roberts wrote in his opinion, in which he was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh. Roberts explained that had Congress meant for a return to be mandatory in the event that there was a lack of compliance with the detention requirement, it would have said so in clear language.
“The statutory grant of discretion here contains no such caveat, and we will not rewrite it to include one,” Roberts wrote.
The majority also pointed to the “foreign affairs consequences” of the policy, claiming that the MPP “imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico.”
The court said Biden was “forced” to negotiate with Mexico about the policy, which is true but only because he wanted to end it. As far as imposing a “significant burden” on the administration in conducting diplomatic relations with Mexico, Trump had no problem at all and not only negotiated the MPP, but several other agreements as well.
The dissenting justices were angry. Justice Alito wrote the dissent, pointing out that the practical effect of eliminating MPP is to simply catch and release illegal aliens into the United States.
“When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided? Congress has provided a clear answer to that question, and the answer is no,” Alito wrote, citing statutory language that in such a case, a migrant “shall be detained” for either removal or consideration of an asylum application.
This has always been an unacceptable alternative to the majority of Americans and several U.S. citizens have paid for that policy with their lives — killed at the hands of illegal aliens released into the United States who were under a deportation order or who never showed for their court hearings.
“Due to the huge numbers of aliens who attempt to enter illegally from Mexico, DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible,” Alito wrote. “But rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings.”
“This practice,” Alito continued, “violates the clear terms of the law, but the Court looks the other way.”
We’re told the illegal aliens waiting in Mexico for their cases to be heard live in “squalid” conditions. The illegals were returned to Mexican territory. The Mexican government allowed the illegals — even encouraged them — to enter the U.S. That they allowed the illegal camps to become filthy and dangerous is on them.
It was a deliberate effort by Mexico to show its displeasure toward the MPP. They knew that the open borders lobby would put pressure on Biden to end the detention policy and go back to releasing illegals into the interior of the U.S.