Chief Justice John Roberts dodged the core legal and political issue in immigration policy when he and a court majority allowed the White House to stop returning migrants to Mexico before their U.S. asylum hearings.
“The essential issues, in this case, are whether the Biden administration is required to detain illegal migrants, and what are the restrictions on the Biden administration’s ability to release illegal migrants,” said Andrew Arthur, a former immigration judge who now works with the Center for Immigration Studies.
“They dodged both of those questions,” Arthur said.
“They completely punted,” added Rob Law, a lawyer and the director of the Center for Homeland Security and Immigration at the American First Policy Institute. He continued:
The Supreme Court completely avoided the critical question, which is, does “shall” actually mean “shall”? The law says that [the government] “shall detain” all of these aliens … and the whole point of [the Migrant Protection Protocols] MPP [program] was that if you don’t have the ability to detain them, then you can [temporarily] send them back [to Mexico].
“By refusing to answer the question, it … allows — for the time being — a continuation of the administration’s [catch-and-release] open border policies,” Law said.
On page 14 of the decision, the five-judge majority says:
We need not and do not decide whether the detention requirement in section 1225(b)(2)(A) is subject to principles of law enforcement discretion, as the Government argues, or whether the Government’s current practices simply violate that provision.
Roughly 100,000 economic migrants are being registered and then released into the U.S. job market each month by President Joe Biden and Border Security Chief Alejandro Mayorkas. The illegal migrants are given legal cover as would-be asylum seekers, or receive “parole,” so they legally enter the United States and are even granted work permits under a controversial legal claim.
“This catch-and-release via asylum or parole for economic migrants does economic harm to Americans and is illegal under the 1965 Immigration Act, the 2006 Secure Fence Act, and the constitution’s requirement that the president ‘take care’ to enforce the laws,” said Arthur.
But the Court dodged those legal disputes and instead decided that the administration does not have to continue using President Trump’s “Remain in Mexico” policy, which is also called the “Migration Protection Protocols” (MPP). The court’s statement said:
Held: The Government’s rescission of MPP did not violate section 1225 of the INA [Immigration and Naturalization Act], and [so] the October 29 Memoranda [cancelling MPP] constituted final agency action.
Trump’s policy used a provision in the law to send migrants back to Mexico until they could be brought back into the United States for their immigration hearings.
The program was very successful because it changed the economics of international migration.
The economic migrants arriving at the U.S. border can fund their dangerous and expensive trip to the United States because they know they will quickly become employed at U.S. jobs to repay mortgages or debts to smugglers. This process reshapes the U.S. and the foreign economies, and so it pulls and pushes foreigners to become workers, consumers, and renters in the U.S. economy.
But the MPP program broke that colonial-style relationship.
When MPP is operating, the migrants who apply at the border for asylum are quickly returned to Mexico. They cannot get the jobs needed to pay their debts, so there is little incentive for them to become migrants with unpayable debts to coyotes and cartels. This means they are more likely to stay at home and to push for the domestic economic and political reforms that are needed to help their countries engage in beneficial trade with the United States.
Once President Donald Trump was out of office, the Biden administration canceled the MPP program and rebuilt the conveyor belt.
Since early 2021, Biden’s deputies have admitted perhaps 2 million southern migrants, including many who sneaked past distracted border guards. That elite-invited migrant wave forces down wages for blue-collar Americans, pushes up rental prices, and reduces pressure on CEOs to spend profits on productivity-boosting technology.
However, after allowing Biden to cancel MPP, the court also allowed a lower court in the Fifth Circuit of Texas to review the cancellation process under the terms set by the Administration Procedures Act (APA). The judges said:
We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. On remand, the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA. See State Farm, 463 U. S., at 46–57.
“There’ll be a new APA analysis of the latest memo that Mayorkas issued [to cancel] the MPP,” said Arthur, adding:
[Justice Sam] Alito in the [minority] dissent, and [Justice Brett] Kavanaugh in a [majority] concurrence, both said, you need to assess whether there’s a public benefit to releasing people into the United States versus sending them back to Mexico … There’s nothing [in law] that interprets the words “significant public benefit” so it is whatever they want to make it … But nobody’s ever interpreted a “significant public benefit” as “Well, we can save on detention space.”
Congress has been clear that [parole] is supposed to be something that’s only rarely used, but when it’s used 40,000 times a month, that isn’t rarely used.
However, in 1996, Arthur noted, “Congress narrowed the parole provision … because they were upset that the Executive Branch was allowing parole to be used as an end-run for immigration programs that Congress didn’t want.”
Also, state Governors and Attorneys General can start again with new lawsuits asking the court to direct compliance with the federal laws requiring the exclusion and detention of migrants, said Arthur:
They can ask the [courts to make the] government not only enforce Section 235(b) and 212.5(b) … they can file a mandamus action asking that the court enforce the Secure Fence Act of 2006 which requires the Secretary to achieve operational control of the southwest border … Congress is pretty specific in the Secure Fence Act about what operational control means — it means preventing the entry of any unlawful alien into the United States.
“The states are going to have to bring a lawsuit that goes to the heart of [the] parole [law],” said Law. “What the states need to do in response is to challenge the [Biden’s use of] parole authority because it is blatantly being abused in a categorical [not a case-by-case] fashion, with absolutely no adherence to the very narrow requirements for when an alien should qualify for it,” he added.
Alito’s dissent guided the lower judges:
The District Court should assess, among other things, whether it is “arbitrary and capricious” for DHS to refuse to use its contiguous-territory return authority to avoid violations of the statute’s clear detention mandate; whether the deterrent effect that DHS found MPP produced in reducing dangerous attempted illegal border crossings, as well as MPP’s reduction of unmeritorious asylum claims, is adequately accounted for in the agency’s new decision; and whether DHS’s rescission of MPP is causing it to make parole decisions on an unlawful categorical basis rather than case-by-case, as the statute prescribes.
But that legal process is slow — especially if the Supreme Court wants to decide the issue.
“When it comes to immigration, the Roberts court seems to want to side with the alien, regardless of what our laws actually say,” said Law. “Roberts wants to be sympathetic to the aliens, regardless of what our immigration laws say about eligibility or legality, or mandatory detention.”
The simplest and quickest fix for any GOP majority in 2023 is to bar Biden’s administration from spending any funds granting parole to migrants, said Arthur:
What I think is a lot more likely is if there is a Republican Congress, they’re going to use the power of the purse, they’re going to take away money from DHS [if it tries to] parole everybody and their brother.
They’re also going to say to the Biden administration, “How much detention space do you need? Because that’s how much we’re going to fund.”
Business-backed pro-migration groups, however, are eager to use the court’s partial decision on MPP to further expand the parole-enabled extraction of many foreign consumers, renters, and workers from poor countries.
Alito’s dissent — signed by Justice Clarence Thomas and Neil Gorsuch — offers a guide to the next wave of lawsuits seeking to curb Biden’s open-door policies:
In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border. 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. By law, if an alien is “not clearly and beyond a doubt entitled to be admitted,” the alien “shall be detained for a [removal] proceeding.” 8 U. S. C. §1225(b)(2)(A) (emphasis added). And if an alien asserts a credible fear of persecution, he or she “shall be detained for further consideration of the application for asylum,” §1225(b)(1)(B)(ii) (emphasis added). Those requirements, as we have held, are mandatory. See Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 13).
Congress offered the Executive two—and only—alternatives to detention. First, if an alien is “arriving on land” from “a foreign territory contiguous to the United States,” the Department of Homeland Security (DHS) “may return the alien to that territory pending a [removal] proceeding.” §1225(b)(2)(C). Second, DHS may release individual aliens on “parole,” but “only on a case-by-case basis for urgent humanitarian reasons or a significant public benefit.” §1182(d)(5)(A).
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. 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 violates the clear terms of the law, but the Court looks the other way.
The case is Biden v. Texas, No. 21–954 in the Supreme Court of the United States.
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