FederalImmigration & BorderJudicialTexas Defends Remain in Mexico Policy Before U.S. Supreme Court in Oral Argument

The Trump administration launched the Migrant Protection Protocols in January 2019 as part of its efforts to deter illegal immigration.
April 26, 2022
Texas Solicitor General Judd Stone argued before the U.S. Supreme Court on Tuesday that a federal judge’s decision requiring the U.S. government to reimplement former President Trump’s remain in Mexico policy should be upheld.

The lawsuit began when Texas Attorney General Ken Paxton led a lawsuit against the Biden administration in April of last year over its scheduled termination of the program, which required tens of thousands of foreign individuals to wait on the southern side of the border while their claims of asylum were considered by U.S. courts.

U.S. District Judge Matthew J. Kaczmaryk of Amarillo issued an injunction requiring the Biden administration to bring back the Migrant Protection Protocols (MPP), and the Supreme Court declined to hear an appeal of that order.

The nation’s high court agreed to take the case earlier this year after the 5th Circuit Court of Appeals decided that a second attempt in October by U.S. Secretary of Homeland Security Alejandro Mayorkas to rescind the MPP was impermissible.

Representing President Biden and other petitioners, U.S. Solicitor General Elizabeth Prelogar argued that Mayorkas legally has the authority to limit the number of illegal aliens his department detains in order to leave bedspace for accused criminals and others feared to be a public safety risk.

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“The secretary of Homeland Security exercised his statutory discretion to make a policy judgment,” Prelogar said. “He found that the benefits of MPP were outweighed by its domestic, humanitarian, and foreign policy costs.”

Justices challenged the solicitor general on her interpretation of federal law, which she asserted does not require the federal Department of Homeland Security to detain or expel illegal aliens especially as it lacks the resources to do so.

However, Chief Justice John Roberts questioned whether a lack of “detention capacity” relieves the U.S. Department of Homeland Security (DHS) of its legal obligations.

“General, your interpretation of this statute I think is entirely manipulable,” Roberts said at one point during the Prelogar’s presentation.

He added, “So you can have a phrase in the statute mean what you want it to mean to accommodate as many people at the border by releasing them as you want, right? There is no limit as you read the statute to the number of people that you can release into the United States, right?”

Prelogar replied, “Congress did not create a limit in that statute, but of course it’s Congress itself that’s making these appropriations decisions about how much bed space to give us.”

Responding to questions posed by Justice Stephen Breyer, Prelogar indicated that about 37,000 illegal aliens were released on “parole” in March and another 43,000 were granted “bond or conditional parole.” The remainder, Prelogar explained, were expelled under the Title 42 public health order or procedures under Title 8 of the U.S. Code, which governs immigration.

In fact, U.S. Customs and Border Protection reported that about half of approximately 212,000 illegal aliens detained in March were set for expulsion under the Title 42 order. Though the Title 42 order was slated to end on May 23, a federal judge indicated he would block the termination via a temporary restraining order.

Stone argued that the federal government is generally required to detain illegal aliens and that DHS improperly rescinded the remain in Mexico policy.

The Texas solicitor general contended that the 5th Circuit Court of Appeals was correct in its decision to reject Mayorkas’ second attempt in October to end the MPP.

The Biden administration reached an agreement with the Mexican government before it began reimplementing the remain in Mexico policy in December 2021.

Justice Elena Kagan challenged Stone on whether the district court’s decision requires negotiations with the Mexican government. She was concerned that a decision in favor of Texas would give the Mexican government “leverage.”

Among other arguments, Stone asserted that Kacmaryk’s decision merely forces the federal government to act in good faith to reinstate the policy. 

Copies of briefs filed by the State of Texas and the Biden administration can be found below.


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Hayden Sparks

Hayden Sparks is a senior reporter for The Texan and a lifelong resident of the Lone Star State. He has coached competitive speech and debate and has been involved in politics since a young age. One of Hayden's favorite quotes is by Sam Houston: "Texas has yet to learn submission to any oppression, come from what source it may."