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Supreme Court's conservatives divided over 'Remain in Mexico' policy

Drew Angerer
Getty Images

Updated April 26, 2022 at 5:48 PM ET

At the U.S. Supreme Court Tuesday, the conservative justices seemed unusually torn as to whether the Biden administration must continue to enforce the Trump-era "Remain in Mexico" program. The policy requires asylum seekers, mainly from Central and South America, to either be detained in the U.S. or stay in Mexico while they wait for months or years for hearings.

Oral arguments are not always conclusive, and sometimes the justices wallop the lawyers on one side, and then turn around and deliver equally brutal blows to the other side. That's what several key conservative justices did on Tuesday, as they considered whether the Biden administration can revoke the Trump-era policy.

The problem is that the statute instructs the government to detain asylum seekers, but Congress has only appropriated enough money to detain 30,000 to 40,000 people at any given moment, a small fraction of immigrants seeking asylum.

Representing the Biden administration, Solicitor General Elizabeth Prelogar told the justices that even the Trump administration was unable to meet the demands of its own policy.

"You're in a position where the facts have sort of overtaken the law," Chief Justice John Roberts noted, but "it's still our job to say what the law is, and if we say what the law is, and you tell us we can't do anything about it, where do you think that leaves us?"

Justice Brett Kavanaugh piled on, asking Prelogar whether there was any indication that Congress, when it last rewrote the law in 1996, knew that hundreds of thousands of people would be released in the U.S. while they wait for their hearings.

"Do you agree that Congress has expressed a preference for detention where that's available?" Kavanaugh pressed further.

"Yes, we do," Prelogar affirmed, but she noted that since the law was enacted in 1996, no administration, Democratic or Republican, has had the resources to detain all migrants crossing the border.

In March of this year, Prelogar observed, there were more than 220,000 border crossings, but funds for only 30,000 detention beds, and in the Trump administration similar numbers led to the same results.

If Prelogar faced a skeptical court, so did Judd Stone, representing the state of Texas and its claim that the Biden administration cannot revoke the Remain in Mexico policy.

First to put him on the spot was Justice Clarence Thomas, the court's most conservative member. Replying to Thomas' questions, Stone acknowledged that Texas could have brought a suit like this one against the Trump administration, and he acknowledged that no other administration has ever complied with the detention mandate. That concession prompted Thomas to observe, "Wouldn't it be odd for Congress to leave in place a statute that would appear to be impossible to comply with?"

Chief Justice Roberts seemed to agree: "I think its a bit much for Texas to substitute itself for the Secretary [of Homeland Security] and say that you may want to terminate it but you have to keep it because it will reduce to a slight extent your violations of the law."

Picking up on the chief's thread, Justice Elena Kagan wondered how it is that a federal court can tell the executive branch how to implement its foreign and immigration policy. Were the state of Texas to prevail, she said, it would "put the United States essentially at the mercy of Mexico," giving a foreign country "all the leverage" it would need to make a long list of demands that would have to be met by the United States.

And Justice Amy Coney Barrett pointed to the federal government's interest in prioritizing detention for the most dangerous migrants seeking to enter the U.S. "If [the Biden administration] is right about that, you lose, am I right?" she asked.

We'll see what the answer to that is when the court decides the case, probably in late June.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.