Migrants taking part in a caravan heading to the US, remain at a makeshift camp, in Huixtla, Chiapas state, Mexico, on June 8, 2022.

Migrants taking part in a caravan heading to the US, remain at a makeshift camp, in Huixtla, Chiapas state, Mexico, on June 8, 2022. PEDRO PARDO/AFP via Getty Images

Supreme Court’s ‘Remain in Mexico’ Ruling Puts Immigration Policy in the Hands of Voters – as Long as Elected Presidents Follow the Rules

In the last decision of the term, the Supreme Court cleared a barrier for the Biden administration to end a Trump-era policy returning asylum seekers arriving in the U.S. to camps in Mexico.

In the very last decision of its latest term, the Supreme Court released a major ruling that not only clears a barrier to ending a signature policy of the Trump administration but also signals that the future of immigration policy is in the hands of the electorate.

In Biden v. Texas, the Supreme Court rejected an effort to prevent the current president’s rollback of a Trump-era policy that requires asylum seekers arriving at the U.S. southern land border to be returned to Mexico while their claims were being processed.

The 5-4 decision means that the case will be returned to the lower courts. But it also makes clear that whoever is control of the White House has the power to change directions in immigration policy – even drastic reversals of policy. It follows that presidents can do the same in other substantive legal areas as well, such as civil rights and environmental protection.

The rights (and wrongs) of remain

The issue in Biden v. Texas was whether the Biden administration could dismantle a Trump administration policy formally known as Migrant Protection Protocols but widely referred to as the “Remain in Mexico” policy.

As part of an array of immigration enforcement measures, the Trump administration announced the policy in late 2018 in response to numbers of migrants arriving at the U.S.-Mexico border.

But the Migrant Protection Protocols came under scrutiny amid concerns over the safety and conditions to which asylum seekers were subjected in camps under the supervision of Mexican authorities. Human Rights Watch found the policy sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.”

Yet an attempt by the Biden administration to eliminate the protocols was barred by the U.S. Court of Appeals for the Fifth Circuit. The circuit judges found that the Biden administration had violated immigration law requiring the detention of asylum seekers.

The Supreme Court rejected this ruling. In a majority opinion written by Chief Justice John Roberts – joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Brett Kavanaugh – the court held that the Biden administration’s decision to terminate the Migrant Protection Protocols did not violate federal immigration law. The state of Texas had argued that ending the “Remain in Mexico” policy violated a provision that every asylum seeker entering the country be returned or detained.

In his dissent, Justice Samuel Alito argued that the statute requires mandatory detention of migrants at the border. Justice Amy Coney Barrett’s dissent expressed the view that the Supreme Court lacked the jurisdiction and that the case should be remanded back to the lower courts.

Avoid the arbitrary, cease the capricious

The Supreme Court’s decision means the case will be sent back to the lower court to decide, but with the removal of a major legal obstacle preventing Biden from ending the “Remain in Mexico” policy. The Supreme Court held that the immigration law does not require mandatory detention of all asylum seekers while their claims are being decided.

But moreover, the court made clear that the president has the discretion to change direction in immigration policy and continue, or end, policies of the previous president.

That might seem self-evident. But it comes after another 5-4 decision penned by Chief Justice Roberts – 2020’s Department of Homeland Security v. Regents of the University of California, which held that a president could not act irrationally in changing immigration policy.

In that decision, the Supreme Court found that the Trump administration had acted in an arbitrary and capricious fashion in rescinding the Obama administration’s Deferred Action for Childhood Arrivals – or DACA – policy. That policy provided limited legal status and work authorization to undocumented migrants who came to the country as children, so-called Dreamers.

In the court’s view, the Trump administration had not adequately considered the interests of the migrant children in deciding to rescind the policy and had given inconsistent reasons about the basis for the rescission.

That ruling provided fuel for states to challenge the Biden administration when it attempted to roll back some Trump-era policies. For example, Arizona, along with other states, challenged Biden’s attempt to abandon a proposed rule change by the previous administration that would tighten the requirements on low- and moderate-income noncitizens seeking to come to the U.S. Although the Supreme Court initially accepted review of the case, it ultimately dismissed the appeal and declined to decide the merits.

In the end, the Supreme Court’s decision in Biden v. Texas stands for the simple proposition that presidential elections matter when it comes to government policy. As long as an incumbent administration follows the rules – including rational deliberation of the policy choices in front of it – it can, the Supreme Court has said, change immigration policy.

The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.