The Supreme Court ruled Thursday that the Biden administration can terminate the Trump administration’s Migrant Protection Protocols, also known as the “Remain in Mexico” policy.
That policy required migrants seeking entry into the U.S. to stay in Mexico as they awaited hearings instead of being released into the country.
The Biden administration had previously tried to repeal the policy but was blocked by a lower court.
The court ruled 5-4 in favor of the Biden administration, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the three liberal justices.
“[T]he Government’s rescission of MPP did not violate section 1225 of the INA [Immigration and Nationality Act], and the October 29 Memoranda did constitute final agency action,” Chief Justice John Roberts said in the Court’s opinion.
The statute Roberts cited says that an individual applying for admission “shall be detained for a proceeding” unless they are “clearly and beyond a doubt entitled to be admitted”.
It also says that if they are from a contiguous territory, “the Attorney General may return the alien to that territory” as they await a hearing, reported Fox News.
The court pointed out the language in the law that says the government “may return” migrants to a contiguous territory, noting the “discretionary” nature of the wording.
“The problem is that the statute does not say anything like that,” Roberts wrote in his opinion”. “The statutory grant of discretion here contains no such caveat, and we will not rewrite it to include one”.
The justices discussed “the foreign affairs consequences” of requiring a return, noting how the Constitution only allows the Executive Branch to handle “direct diplomacy” with other countries. The lower court’s ruling could have “imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico”.
Also noted by the court is the discretion to utilize a third option for migrants, parole, given by Congress to the Department of Homeland Security.
“I agree with the Court’s analysis of the merits—but not with its decision to reach them,” said Justice Barrett.
“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,” wrote Justice Alito.