The Department of Homeland Security implemented a series of Migrant Protection Protocols (MPP) in January 2019. Under those orders, most often known as ex-President Trump’s “Remain in Mexico” program, “certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings.” These aspiring immigrants, who came to the United States from all over Latin and South America sought asylum in the United States but had to stay in Mexico while their immigration claims were reviewed by U.S. immigration courts.

This week, in a 5-4 ruling, the Supreme Court, in Biden v. Texas et. al., said that the Biden administration has the right to end the policy that has led to over 70,000 detentions and many tragic and heartbreaking consequences. The case is now remanded to the United States Court of Appeals for the Fifth Circuit for a determination of the legality of Biden’s termination of the MPP program.

The opinion was written by Chief Justice John G. Roberts and joined by Associate Justices Sonia Sotomayor, Stephen G. Breyer, Elena Kagan, and Brett Kavanaugh who filed a concurring opinion that said the government needed to give additional information about how the public would benefit from increased immigration. Associate Justice Samuel Alito filed a dissenting opinion which Associate Justices Clarence Thomas and Neil M. Gorsuch joined. Associate Justice Amy Coney Barrett filed an additional dissenting opinion and was joined by Thomas, Alito, and Gorsuch, except for the first sentence.

Roberts stated the two questions before the court: (1) whether the Government’s rescission of the MPP violated the Immigration and Nationality Act and (2) whether the Government’s second termination of the policy was a valid final agency action.

The Chief Justice first explained that the MPP was implemented under a provision of the Immigration and Naturalization Act (INA) that says that the Secretary of Homeland Security may “return the alien” to foreign territory. He explained that the Supreme Court had jurisdiction to “enter injunctive relief.”

He then turned to the merits of the case, initially noting that the word may denotes discretion and because Congress used it, it did not intend the MPP to be mandatory. Roberts also provided a historical context that supported his conclusion that “every Presidential administration has interpreted (it) as purely discretionary.” He added that a mandate would “impose a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico...” Other justices also feared the effect that a mandate would have on foreign affairs, and those who joined the opinion echoed Roberts’ belief that the policy is and always has been discretionary.

There was also concern about the failure of Congress to allocate sufficient funds to house the enormous number of adults and children who had to stay in Mexico. The New York Times wrote that in 2021, the government “processed about 670,000 immigrants arriving from Mexico, but the U.S. only had the capacity to detain about 34,000 of them.

The second question before the court was answered in the affirmative because the DHS memos regarding termination of the MPP were not abstract or a “post hoc rationalization” of their previous memos. Rather, they were a “new rescission bolstered by new reasons.” In addition, the majority opinion rejected arguments that DHS failed to proceed with an “open mind.” Roberts stated that “the various rationales offered by respondents and the Court of Appeals in support of the contrary conclusion lack merit.” The case was reversed and remanded to the Fifth Circuit.

The Court did not discuss Title 42, a public health program that added additional roadblocks to immigration and denied immigrants a chance to request asylum in order to block the spread of COVID-19.

Ironically, the Supreme Court ruling came just one day before 53 undocumented immigrants died in a San Antonio tractor-trailer in what one Homeland Security Investigations agent called “the deadliest human smuggling incident in U.S. history.” The Trump-era policy had led to the creation of dangerous and unsanitary refugee camps where migrants, such as those who lost their lives in San Antonio, were frequently the target of kidnappers and drug cartels. Human Rights First, a non-profit organization based in New York, recorded 1,544 “publicly reported cases of murder, rape, torture, kidnapping, and other violent assaults against asylum seekers and migrants forced to return to Mexico.”

Biden v. Texas traveled a long path to the Supreme Court. After Biden took office, Homeland Security Secretary Alejandro Mayorkas reviewed and then suspended Trump’s policy in January 2021. It was officially canceled by a memorandum in June 2021 after Texas and Missouri sued the Biden Administration in April of that year. They argued that the cancellation violated administrative and immigration laws and would have severe consequences. Human trafficking would increase, and states would have to use scarce resources to house, clothe, feed, provide health care, and assist immigrants in other ways as they awaited court dates.

Last year, a federal district judge in Texas ruled that the Biden Administration had violated immigration law when it failed to detain every immigrant who tried to enter the country. Then in August 2021, U.S. District Judge Matthew J. Kacmaryk ordered the Administration to reinstate Trump’s MPP policy. He said that immigration laws required the U.S. to return noncitizens to Mexico when the U.S. government lacks the resources to detain them.

A three-judge panel of the Court of Appeals for the Fifth Circuit then rejected the DHS plan to block the MPP program. Judge Andrew S. Oldham said the administration argued it had total discretion to create an expensive program that would affect thousands of people as well as foreign governments. He disagreed with their ability to do this by just writing a new memo. He thought that this would totally supplant the rule of law. During oral argument, U.S. Solicitor General Elizabeth Prelogar said the appeals court decision was “unwarranted interference with the president’s power” to conduct foreign affairs.

The Administration then appealed to the Supreme Court arguing they had the right to end the MPP program. So far, the Supreme Court has agreed.