By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies
Immigration has been on the political agenda for decades, but it has not been a top item. However, the Trump administration placed immigration at the forefront of its domestic policy, and the Supreme Court has made a recent decision on this issue.
In the case of Biden v. Texas, the Supreme Court backed the U.S. Department of Homeland Security’s decision to end the Migrant Protection Protocols (MPP). This case shows that the Supreme Court is not simply a mirror of current political views. Interpretation of the law is still at the center of the Justices’ work, even if their personal political beliefs might differ from one another.
The History Behind Biden v. Texas
In December of 2018, the Department of Homeland Security published a policy called the Migrant Protection Protocols (MPP), also known as the “remain in Mexico” policy. Under this policy, certain non-Mexican nationals arriving in the United States by land routes were returned to Mexico to await the results of their removal proceedings.
However, the Biden administration announced that it would suspend MPP. On June 1, 2021, the Secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, issued a memorandum officially terminating MPP.
However, Texas and Missouri claimed that the termination of MPP was not lawful since the Immigration and Nationality Act (INA) demands that one of two actions be taken by the federal government. The first action was that the INA requires mandatory detention; the second action is contiguous-territory return of illegal immigrants.
Lower courts, including a district court, held that ending the MPP violated the INA. The case eventually made its way to the Supreme Court.
Biden v. Texas Becomes a Landmark Immigration Case with the Supreme Court’s Ruling
In a 5-4 decision, the Supreme Court said that the White House and DHS’s decision to end the MPP was not in violation of the INA. Justice John Roberts explained that DHS acted lawfully in its decision to eliminate the MPP and that DHS was acting in a way that was consistent with federal immigration law. He also noted that the MPP policy was interpreted too narrowly by the district court.
Justice Brett Kavanaugh explained it clearly in his concurring opinion: “In general, when there is insufficient detention capacity, both the parole option and the return-to-Mexico option are legally permissible options under the immigration statutes. As the recent history illustrates, every President since the late 1990s has employed the parole option, and President Trump also employed the return-to-Mexico option for a relatively small group of noncitizens. Because the immigration statutes afford substantial discretion to the Executive, different Presidents may exercise that discretion differently.”
The Minority Opinion on Biden v. Texas
Writing for the minority, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, adopted the narrow reading of the district court. Alito’s minority opinion noted that “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. “
Justice Amy Coney Barrett expressed a similar opinion. She wrote that from a procedural point of view, the Justices should not hear the case and remand it to the lower courts.
Related link: The Supreme Court Regulates a Federal Agency’s Power
What Will Happen During the Supreme Court’s Next Term?
The Justices seem to be well aware that the Supreme Court is now seen by the public as a political battleground and that the Justices are seen as ideologists rather than jurists. However, the use of tempered language by the Justices in this type of case can serve to calm strong political feelings.
The Justices seem to be fully aware of how the Supreme Court’s reputation has been damaged by its recent and unpopular decisions, and they have hinted that Congress should take charge. For example, Justice Kavanaugh observed, “The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings. But this Court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems.”
In other words, Justice Kavanaugh is saying that the Supreme Court is simply interpreting the law, not making it. He has also hinted that the Court’s ruling in cases such as Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade is devoid of any political agenda.
Kavanaugh’s statement is an oversimplification of the situation. However, it seems that the public message of the Supreme Court is that Congress can take things out of the Court’s hands and that action will be respected by the Justices.
In the coming months, depending upon the results of the midterm elections in November and in the lame duck session after that, we may see some new moves from Congress. Perhaps incumbents who lose their seats in Congress can create new laws before they leave, or newly elected members can take action and hit the ground running. The Supreme Court, it seems, would love for someone else to take political heat.