The Supreme Court on Thursday upheld President Biden’s powers to enforce immigration laws, ruling that he could repeal the Trump-era “stay in Mexico” policy that barred most Central American migrants from entering the United States to seek asylum.
5-4 decision in Biden v. Texas has overturned lower court rulings requiring a Democratic administration to continue President Trump’s strict border security policies.
Chief Justice John G. Roberts, Jr. wrote the majority opinion, joined by fellow Conservative Justice Brett M. Kavanaugh and three Court Liberals, Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.
Roberts said the law allows the administration to return asylum seekers to Mexico, but does not require it to do so.
His opinion is not a complete victory for the administration, but the Chief Justice said the law does not require Biden to accept Trump’s view of the law.
“We just think that [the Immigration and National Act] means what it says: “may” means “may” and the INA itself does not require that the secretary continue to exercise his discretion under these circumstances,” he wrote.
The judges returned the case to a lower court in Texas to hear other remaining objections to Biden’s policies.
Immigrant rights activists hailed the result as a major victory and a welcome surprise.
“This is a victory for the thousands of people who are stranded by Trump’s policy of staying in Mexico,” said Erin Mazursky, managing director of Families Belong Together. “It happened the same week that we mourned the lives lost in San Antonio – a devastating tragedy, directly related to policies such as Stay in Mexico that hindered a safe and fair asylum system.”
She was referring to the more than 50 migrants who died after being abandoned in a truck trailer in the heat in Texas.
“Now the Biden administration must end this brutal policy and move forward with its promise of a more compassionate approach to a system that welcomes people seeking safety,” she said.
But ACLU attorney Lee Gelernt warned that border policy may not change as long as Section 42 is in place. That pandemic-related rule blocked migrants from entering to apply for asylum, and it did not change in Thursday’s decision.
“There are overlapping policies, and Section 42 is more extreme and affects more people than the MPP,” he said, referring to the Migrant Protection Protocols, the official name for Trump-era policies. “Therefore, from a practical standpoint, it doesn’t really matter whether the MPP can be used if Section 42 is in effect,” he said.
A federal judge in Louisiana has blocked the repeal of Section 42, Gelernt said, and the lawsuit to challenge the decision is moving slowly.
Some immigrant rights advocates argue that the administration does not want to make major changes to border policy before the November election.
Trump announced his policy in December 2018. Central American migrants have been told they can no longer enter the United States through the border crossing, apply for asylum and apply for release while their applications are pending, a process that could drag on for several years.
Instead, they were told they had to wait in Mexico until their claims were reviewed by an immigration judge.
Immigrant rights advocates have denounced Trump’s policies as unsafe and inhumane. Biden announced his intention to cancel it in his early days in office.
But the new administration faced a major legal challenge from the Attorney Generals of Texas and Missouri. They filed lawsuits alleging that Biden’s reversal of Trump’s policies violated the law and due process. And they won decisions by Trump-appointed judges who blocked the repeal.
Last year, the Supreme Court denied the administration’s requests and refused to intervene. But the judges agreed to hear all arguments in April.
It was about the conflicting provisions of immigration law. Texas lawyers have indicated that some believe most asylum seekers “should be detained” until their cases are resolved, or else the government “could return” them to the territory they arrived in.
Biden’s lawyers pointed to other provisions that say asylum seekers can be released on parole “on a case-by-case basis” for urgent or humanitarian reasons. They also argued that for decades it was believed that immigration authorities did not have enough detention facilities to hold all migrants who had pending asylum applications.
Last week Kavanaugh joined more conservative judges in major rulings on abortion, guns and religion. But on Thursday, he agreed with Roberts that the president, whether Republican or Democrat, has leeway on how to enforce immigration laws.
A longstanding problem, he said, is that the government does not have enough space to hold many tens of thousands of asylum seekers until their cases are processed.
“When the Department of Homeland Security does not have sufficient capacity to detain non-citizens at the southern border while awaiting their immigration procedures (often asylum procedures), … immigration laws provide two main options,” he said. “Option one: DHS can grant noncitizens parole from entry into the United States. … Remarkably, every administration since the late 1990s has relied heavily on the parole option, including the administrations of Presidents Clinton, Bush, Obama, Trump, and Biden.”