Will the Supreme Court be as deferential to Biden on immigration as it was to Trump?

Another day, another hot-button issue at the U.S. Supreme Court. This time the question is whether the Biden administration must continue to enforce the Trump-era program known as Remain in Mexico. The policy requires asylum-seekers, mainly from Central and South America, to remain in Mexico while they wait for a hearing in a U.S. immigration court.

The Trump administration devised the Remain in Mexico policy in hopes of deterring migrants from streaming into the U.S. with asylum claims. The Biden administration suspended the program immediately upon taking office, but the 5th U.S. Circuit Court of Appeals, acting on a challenge brought by Texas and Missouri, ordered the new administration to continue the Trump policy. On Tuesday, the Supreme Court hears the argument in an expedited appeal.

The case centers on the meaning of numerous immigration provisions, how they have been interpreted for decades and, bluntly put, whether the Supreme Court will be as deferential to the Biden administration as it was to the Trump administration when it comes to immigration enforcement policies.

How the law works

Immigration law operates like a Russian nesting doll: You open it up, and another doll is inside and then another and another.

According to the states of Texas and Missouri, backed by 21 other red states, the law says that all asylum-seekers "shall be detained," and "shall" means that they must be detained for however long it takes until their cases are decided in court.

"The administration basically has two choices," says Indiana Solicitor General Thomas Fisher. "You either detain people seeking asylum at the border," or "if you don't have the detention space, you're sort of left with returning them to Mexico." Fisher wrote an amicus brief on behalf of 19 states supporting Texas and Missouri.

But that is not the way the law has ever been enforced by any administration, Democratic or Republican, including the Trump administration. In fact, while the "shall" language has been in the immigration law since 1903, so has other arguably contrary language, using qualifiers and words such as "may."

For example, another provision says the government "may" release asylum-seekers into the U.S. "on a case-by-case basis for 'urgent humanitarian reasons.' " The Biden administration argues that this provision serves as an alternative release valve, allowing the government to release asylum-seekers who "present neither a security risk nor a risk of absconding."

A complicated issue

Former immigration officials, Republican and Democratic, say there's a good reason for the fudgy language: Everything about borders is complicated. To begin with, there has been no major rewrite of the nation's immigration laws in more than 25 years. The last time the law was updated, in 1996, legislative disagreements were resolved with compromise language to deal with the fact that, on the one hand, Congress wanted to make it more difficult to release asylum-seekers pending their hearings and, on the other, detaining everyone would be prohibitively expensive.

At no time since the 1996 law was passed has everyone — or even most of the people — seeking asylum been detained, including in the Trump years.

The problem is that "Congress has only appropriated money for Homeland Security to detain around 30- to 40-thousand individuals at any given moment," says Stewart Verdery, who served as assistant secretary of homeland security during George W. Bush's administration. These days, Verdery observes, over a million people cross the border a year, so "by definition, you can't detain everybody."

Did Remain in Mexico work?

Immigration specialists disagree as to how effective the Remain in Mexico policy has been as a deterrent.

Indiana's solicitor general, Fisher, argues that the Trump program was working. "The volume of applicants showing up at the border decreased precipitously," he says, citing a 2019 report by the Trump administration.

"That's false," says Jeh Johnson, who served as the Obama-era secretary of homeland security from 2013 to 2017. On the Trump administration's watch in 2019, "we had almost 1 million apprehensions on our southern border ... the highest number we've seen in years," Johnson observes.

Under the Trump administration, only 68,000 people were put into the Remain in Mexico program by Customs and Border Protection — a tiny fraction of those seeking asylum in the United States.

Implications for foreign policy

At the heart of all this is a separate legal question: whether the courts should second-guess the foreign policy judgments that undergird this and other immigration policies. At this point, neither Mexico nor the Biden administration wants Remain in Mexico to continue. Both see it as a flawed program in which migrants in squalid camps at the border have little ability to find lawyers or information for their hearings and are subject to violent attacks, kidnapping, extortion and rape by criminal cartels.

What's more, the Biden administration sees the lower court's order as invading its ability to deal effectively with Mexico. A group of former immigration officials from both parties echoes that point in friend-of-the-court briefs filed in this case.

For instance, Verdery points to the port of San Ysidro, south of San Diego, the busiest port of entry in the U.S., with 32 lanes of traffic, trucks, cargo, tourists and an unknown number of migrants trying to cross the border illegally. It's a place where billions and billions of dollars in trade and people transit across the border every day, according to Verdery, and managing priorities with Mexico is a complicated and fluid task.

To cite just one example, he notes that after the 9/11 attacks, the U.S. and Mexico went to a maximum level of protection and then over time relaxed restrictions because the economies in both countries were suffering. Such continually changing circumstances are part of why the courts have largely deferred to the executive branch in managing the border with Mexico.

"This is something that has to be worked out between governments, and it really is not a place for a court to get involved," Verdery says.

Johnson, the former DHS secretary, echoes that sentiment, contending that the lower court was outside its constitutional lane when it told the executive branch of the U.S. government to tell the government of Mexico to restore Remain in Mexico. "Rarely, if ever, has a court decision intruded into the foreign policy of the United States in this way," Johnson says.

But countering that argument, Texas and other Republican-dominated states argue that in 1996 Congress intended to narrow the executive branch's discretion and that now is the time to hold true to that mandate.

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