Tipsheet

Read It: The Fiery Dissent to SCOTUS Decision Allowing Biden to End 'Remain in Mexico'

Spencer Brown
Spencer Brown  |  June 30, 2022 11:30 AM

The Supreme Court ruled in a 5-4 decision on Thursday that the Biden administration is within its authority to rescind the Migrant Protection Protocols, better known as "Remain in Mexico," a Trump-era policy that required migrants seeking asylum to await their immigration court hearings outside the United States. The impact of the Biden administration being allowed to end the program will only make the border crisis created by the president's policies even worse and the U.S.-Mexico border even more dangerous.

The majority opinion was written by Chief Justice Roberts and joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh. Two dissents were authored, one by Justice Samuel Alito joined by Justices Thomas and Gorsuch and one by Justice Amy Coney Barrett joined in part by Justices Thomas, Alito, and Gorsuch. 

The majority ruled that "the Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda did constitute final agency action" and "therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion," but the dissenting minority disagreed and accused the Court of looking "the other way" as Biden's border crisis worsens. 

As Alito's dissent explains:

Due to the huge numbers of aliens who attempt to enter illegally from Mexico, DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible. But rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings. This practice violates the clear terms of the law, but the Court looks the other way.

Continuing, Alito writes that justices in the majority made three main errors in their decision and created a new "option" for migrants that allows illegal immigrants seeking asylum to be released into the United States:

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First, it unnecessarily resolves difficult jurisdictional questions on which—due to the Government’s litigation tactics—we have received only hurried briefing and no argument. Second, when the majority reaches the merits, it contrives a way to overlook the clear statutory violations that result from DHS’s decision to terminate the use of its contiguous-territory return authority. Finally, the majority unjustifiably faults the Court of Appeals for rejecting the Government’s last-minute attempt to derail the ordinary appellate process. I cannot go along with any of this, and I therefore respectfully dissent.

[...]

As described above, the INA gives DHS three options regarding the treatment of the aliens in question while they await removal or asylum proceedings. They may be (1) detained in this country or (2) returned to Mexico or (3) paroled on a case-by-case basis. Congress has provided no fourth option, but the majority now creates one. According to the majority, an alien who cannot be detained due to a shortage of detention facilities but could be returned to Mexico may simply be released. That is wrong.

Republicans were quick to condemn the Biden administration's ongoing border crisis and warn that things will only get worse in the days ahead. 

The full opinion, including dissents, can be viewed below: