In 2019, the Trump administration initiated a policy that kept those seeking asylum in the United States in Mexico until their cases could be heard. Named “Migrant Protection Protocols (MPP),” the first thing the Biden administration did when it got into office was to try to end the program unilaterally.
But the MPP came about as a result of abuses by asylum seekers during the immigration process. It substantially reduced the number of asylum requests, and while courts have weakened the rule, the Biden administration ended up negotiating new terms with the Mexican government.
Then a judge in Texas ruled that Biden’s ending the program may have violated the Administrative Procedure Act, which prevents arbitrary regulations, because the administration did not consider various facts. Those facts included the surge in illegal border crossings on the Southern border.
Those asylum seekers subject to the MPP were treated inhumanely by the Mexican government and forced to stay in unsafe, squalid camps where crime was rampant.
To what extent is Mexico deliberately creating these conditions so that the U.S. is forced to continue the “catch and release” policy for asylum seekers and the Mexican government can wash its hands of the problem?
Tuesday’s case and the political fallout over the Biden administration’s effort to end Title 42 next month have again put into sharp focus the politically precarious position for the White House and the uphill battles the White House faces in court.
While Biden himself vowed to end the “remain in Mexico” program upon taking office, he has been stymied by federal courts.
The case raises questions not only regarding immigration law, but also a president’s control over policy and his diplomatic relationships with neighboring countries.
Trump’s “lawless” actions at the border adhered to U.S. law, as most courts have recognized. But the MPP stands in the way of Biden’s grand design for the border, and the Solicitor General, who is arguing the case before the Supreme Court, has her own novel interpretation of the law.
Solicitor General Elizabeth Prelogar told the justices in court papers that the lower courts had relied on “novel and erroneous interpretations” of federal law to compel DHS to maintain a program that the administration has “twice determined to be contrary to the interests of the United States.”
And she noted that not even the Trump administration had interpreted immigration law to read that the government must be able to detain most people coming to its borders.
“Under the court of appeals’ interpretation, every presidential administration — including the one that adopted MPP — has been in continuous and systematic violation” of immigration law, she wrote. “The Executive has long exercised discretion to choose how best to allocate limited resources by prioritizing which noncitizens to take into custody and remove, what procedures to use to pursue removal, and whom to detain during the removal process.”
The president is not a king. Exercising “discretion” is a far cry from Barack Obama legalizing 4.5 million illegals in the DACA program or Biden wanting to make new law about asylum seekers with the stroke of a pen.
Everyone agrees that this is a job for Congress. Only the legislature should be able to make a national immigration policy. But as long as both sides continue to use immigration — legal and illegal — as a club with which to beat the other side over the head, nothing will get done and the problem will get worse.
