SCOTUS Dumps ‘Remain in Mexico’ — Swings Border Further Open

The Supreme Court put another effective border directive on ice Thursday when it ruled that President Joe Biden may ditch the so-called “Remain in Mexico” policy. The president moved quickly after his inauguration to shut it down only to be sued by Texas and Mississippi.

The policy is formally known as the Migrant Protection Protocols. It forced those looking for asylum at the nation’s southern border who were not Mexican citizens to stay on the Mexican side for the process. And it was effective.

The states argued that the measure, implemented by former President Donald Trump, reduced illegal migration from El Salvador, Guatemala, and Honduras by 80%. Roughly 70,000 migrants were forced to stay south of the border, and many thousands formed tent encampments as they waited.

They also cited federal law that states a person applying for asylum “may be returned to that (contiguous) territory” as the process moves on. This applies to border countries Mexico and Canada.

An injunction stopping the program’s dismantling was issued and a federal appeals court agreed with the lower court. The Supreme Court last August also blocked the administration’s attempt to end “Remain in Mexico” and let the case wind its way through further appeals.

But in its 5-4 decision, the high court reversed the lower court injunction. An unusual coalition of conservatives Justices John Roberts and Brett Kavanaugh joined liberal Justices Sonia Sotomayor, Elena Kagan, and the retiring Stephen Breyer to reject the state’s argument.

Writing for the majority, Roberts said that “may return” is not a requirement but rather is “discretionary.”

Justice Samuel Alito’s written dissent declared that Congress has a “clear statutory alternative to return inadmissible aliens to Mexico.” The Department of Homeland Security, Alito charged, decided instead to let “untold numbers of aliens” loose in the country.”

This win for the Biden administration comes as Title 42 remains in place and is used more frequently than “Remain in Mexico.” The pandemic-era measure to hinder COVID’s spread across the border is effective, and even Biden knows he doesn’t need the border headache before midterms.