In the very last decision of its latest term, the Supreme Court released a major ruling that not only clears a barrier to end a signature policy of the Trump administration but also signals that the future of immigration policy is in the hands of the electorate.
In Biden v. Texas, the Supreme Court rejected an effort to prevent the current president’s rollback of a Trump-era policy that requires asylum seekers arriving at the U.S. southern land border to be returned to Mexico while their claims were being processed.
The 5-4 decision means that the case will be returned to the lower courts. But it also makes clear that whoever is in control of the White House has the power to change directions in immigration policy – even drastic reversals of policy. It follows that presidents can do the same in other substantive legal areas as well, such as civil rights and environmental protection.
The rights (and wrongs) of the “remain in Mexico” policy
The issue in Biden v. Texas was whether the Biden administration could dismantle a Trump administration policy formally known as Migrant Protection Protocols but widely referred to as the “Remain in Mexico” policy.
As part of an array of immigration enforcement measures, the Trump administration announced the policy in late 2018 in response to a number of migrants arriving at the U.S.-Mexico border.
But the Migrant Protection Protocols came under scrutiny amid concerns over the safety and conditions to which asylum seekers were subjected in camps under the supervision of Mexican authorities. Human Rights Watch found the policy sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.”
Yet an attempt by the Biden administration to eliminate the protocols was barred by the U.S. Court of Appeals for the Fifth Circuit. The circuit judges found that the Biden administration had violated immigration law requiring the detention of asylum seekers.