U.S. Supreme Court hears arguments on whether Biden can toss Trump’s “remain in

The U.S. Supreme Court heard arguments Tuesday morning on whether the Biden administration can scrap a Trump-era policy that forces asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts.

During two hours of arguments, the lawyers largely focused on a central question: Does the executive branch have the sole authority to set U.S. immigration policies?

The case reached the Supreme Court after a federal district judge in Texas last year ruled that the Biden administration violated immigration law by not detaining every immigrant attempting to enter the country. U.S. District Judge Matthew J. Kacsmaryk ordered the Biden administration to restart the Migrant Protections Protocols, also called “remain in Mexico,” which the Trump administration first implemented in January 2019 and Department of Homeland Security Secretary Alejandro Mayorkas canceled in June 2021.

That decision led Texas and Missouri to sue the Biden administration in April 2021, arguing that canceling MPP violated administrative law and that without the program, human trafficking would increase and force the states to expend resources on migrants — such as providing driver’s licenses, educating migrant children and providing hospital care.

The Biden administration argued it has the discretion to end the program and that it was not an effective way to deal with migrants seeking asylum.

During Tuesday’s arguments, Texas Solicitor General Judd Stone argued that if the U.S. can’t detain every immigrant attempting to enter the country, immigration law says the federal government must return them to Mexico. He said MPP allowed the federal government to comply with that part of the law.

“MPP, as implemented, reduced the number of violations. It did not fully satisfy the executive’s mandate,” Stone told the justices. “But so far as it went, it complied with the executive’s obligations to return rather than detain the aliens enrolled in MPP.”

U.S. Solicitor General Elizabeth Prelogar, the Biden administration’s lawyer, argued that Congress has allocated only enough money to pay for just over 30,000 beds for migrants detained at the border, which isn’t enough for the thousands more who come to the U.S.-Mexico border every month.

Migrants they can’t detain are either quickly expelled under the pandemic-era emergency health order known as Title 42, are released inside the country in lieu of bond or are allowed to be let into the country without detainment on a case-by-case basis, she said, adding that there is a public benefit to release them. She said agents on the ground have the discretion to make that determination.

These are all options Congress has approved, she said.

“Nothing in the statutory text or history compels [the Department of Homeland Security] to use MPP whenever Congress fails to provide sufficient funds for universal detention,” Prelogar argued.

Justice Brett Kavanaugh asked Prelogar if Congress preferred detention when it passed immigration law and if there is truly a public benefit to releasing migrants.

“There’s no real explanation of how the public is benefited by more people coming into the United…