SCOTUS hears arguments on ‘Remain in Mexico’ policy, seem to side against Biden admin

President Joe Biden’s administration has, from the start, sought to end the Trump-era Migrant Protection Protocols, better known as the “Remain in Mexico” policy, that requires migrants seeking entry to the U.S. to wait in Mexico while their cases are heard, but Biden’s effort has been blocked by the federal courts.

The Supreme Court heard oral arguments on the matter Tuesday and, according to Just the News, a majority of the justices seemed to indicate that they were leaning toward upholding the policy and ruling against the Biden administration.

This challenge had been brought by Texas and Missouri and both a district court judge and 5th Circuit appeals court panel had sided with the states and determined that the administration had not followed proper procedure to end the MPP policy. The appeals process had been fast-tracked and a final decision is expected in the coming months.

Is there a solution?

Just the News reported that the Republican-appointed justices on the Supreme Court seemed inclined to keep the MPP policy in place, but SCOTUSblog reported that all of the justices had tough questions for the attorneys representing both sides in the case and expressed skepticism on some of the arguments they made.

Indeed, some of the justices seemed to agree that the manner in which the administration had handled enforcing and ending the MPP was inconsistent with federal law, but also seemed to question the right of states to force the federal government to keep in place a policy that implicates foreign policy, given that Mexico’s cooperation is necessary for the MPP to work.

Biden’s Solicitor General Elizabeth Prelogar argued that whatever benefits may be gained by requiring migrants seeking entry to wait in Mexico while their case is adjudicated were outweighed by the program’s “domestic, humanitarian, and foreign policy costs.” Furthermore, she asserted that the Homeland Security secretary had “discretion” to decide what, exactly, to do with migrants seeking entry at the border.

Texas Solicitor General Judd Stone, however, countered that the referenced “discretion” only included three options — detention in federal custody, return to the contiguous nation from which they arrived — Canada or Mexico — or, on a case-by-case basis, temporary release into the country pending a court hearing.

“Shall” vs. “may”

Fox News reported that much of the oral arguments focused on the particular statutory language at play here, specifically with regard to the meaning and use of the words “may” and “shall” in relation to the detention and release of apprehended migrants at the border.

The Texas attorney cited 8 U.S.C. Sec. 1226 in support of its argument that the government only had the three options available to it and highlighted that the statute says all apprehended migrants “shall” be detained but “may” be released under certain specific conditions.

Similar language was cited in 8 U.S.C. Sec. 1225, in that all migrants arriving at the border “shall be detained” until they are either cleared for entry by a judge or ordered removed to their nation of origin.

The administration’s attorney, however, pointed to different provisions in those same statutes that, by virtue of the word “may,” imply discretion on the part of federal officials to release a migrant if there is insufficient capacity to detain them, whether that be into the country or the contiguous nation from which they arrived.

A final decision will likely be issued by June and it will be interesting to see how all nine jurists vote on the matter.

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