▶ Watch Video: U.S. expands Trump-era “Remain in Mexico” border policy to San Diego

The Supreme Court on Tuesday will hear oral arguments in a case that could determine whether the Biden administration can terminate the so-called “Remain in Mexico” policy, a rule first implemented under former President Donald Trump that requires migrants arriving at the southern border to wait outside the U.S. for their asylum hearings.

At the center of the case, known as Biden v. Texas, is the decision last year by President Biden’s appointees to suspend and ultimately end the policy, which the Trump administration utilized to require 70,000 Latin American migrants to wait outside the U.S. while their asylum requests were reviewed.

Formally known as the Migrant Protection Protocols, the Trump administration scaled back the rule at the onset of the COVID-19 pandemic, and Mr. Biden ended it upon taking office. In August 2021, Republican officials in Texas convinced a federal judge to order U.S. border officials to reinstate the program.

In his ruling, which was later upheld by a federal appeals court, U.S. Judge Matthew Kacsmaryk, a Trump appointee, said the administration did not adequately justify Remain in Mexico’s termination and that the policy’s end led officials to violate a 1996 law that requires the detention of certain migrants.

Since December, the Biden administration has been implementing the border policy, albeit in a limited fashion. But it has continued to argue it has the authority to end the program once and for all, denouncing its “unjustifiable human costs” on asylum-seekers. 

Justice Department lawyers, who asked the Supreme Court to intervene in the case on an expedited basis, are expected to argue Tuesday that the executive branch has broad authority to rescind policies enacted by previous administrations.

In a brief for the court, Justice Department lawyers said the conclusions reached by the lower courts would mean that every U.S. administration has been “in open and systemic violation” of the 1996 migrant detention law since only Trump implemented the Remain in Mexico policy, and not until early 2019.

The Biden administration has also said it is logistically impossible to detain all migrants who reach the U.S.-Mexico border since Congress has only allocated funds for about 34,000 immigration detention beds.

Lawyers for the state of Texas, however, have argued that U.S. border officials are generally required to either detain or return migrants to Mexico. If the U.S. cannot detain migrants because of capacity limits, Texas has argued, it should be returning them to Mexico so they can wait there for the duration of their asylum cases.

“Petitioners would prefer not to choose from the options Congress has provided — namely, to detain, individually parole, or return covered aliens. They instead seek the power to release classes of aliens into the United States en masse,” Texas told the Supreme Court in an April 7 filing.

The specific questions the Supreme Court is set to consider are whether it should overturn the 5th Circuit Court of Appeals’ conclusion that officials need to enforce Remain in Mexico to comply with the 1996 migrant detention law, and whether the appeals court should have considered the Biden administration’s second attempt to end the policy.

In its ruling in December upholding the original order against Remain in Mexico’s termination, the 5th Circuit rejected the argument that a second termination memo by Department of Homeland Security (DHS) Secretary Alejandro Mayorkas remedied the alleged legal defects of his first termination memo.

“DHS claims the power to implement a massive policy reversal — affecting billions of dollars and countless people — simply by typing out a new Word document and posting it on the internet,” the court said in its scathing opinion.

Since reinstating the rule in December, the Biden administration has enrolled 3,012 migrants in the Remain in Mexico program, most of them asylum-seekers from Cuba, Nicaragua and Venezuela, DHS data show. During that period, U.S. officials along the southern border have processed migrants over 700,000 times.

While Mr. Biden has sought to end the Remain in Mexico rules, his administration kept another Trump-era border policy, known as Title 42, that has allowed U.S. officials to swiftly expel migrants without screening them for asylum due to the pandemic. Title 42 is set to expire in late May.

The Trump administration’s implementation of Remain in Mexico elicited strong criticism from advocates for migrants, who said the rule left asylum-seekers at the mercy of criminal groups in dangerous Mexican border towns. Human Rights First, a U.S. group, reported hundreds of cases of migrants being kidnapped, assaulted or otherwise harmed after their return to Mexico.

Advocates also said the program trampled on the due process of asylum-seekers. Fewer than 800 migrants enrolled in the Remain in Mexico protocols were granted U.S. refuge, while tens of thousands lost their cases or were ordered deported for missing court dates, an analysis of government data by Syracuse University’s TRAC project shows. 

But Trump administration officials said the program effectively reduced border arrivals by preventing migrants fleeing economic hardship from using the asylum system to live and work in the U.S. indefinitely.

The Biden administration made significant changes to its iteration of the Remain in Mexico program, including by requiring U.S. border officials to ask migrants whether they fear being harmed in Mexico before sending them there.

The administration has also offered COVID-19 vaccines to prospective enrollees and expanded the categories of asylum-seekers deemed to be too vulnerable to be returned to Mexico, including the elderly, those with medical conditions and members of the LGBTQ community.