The Enormous Stakes in the Supreme Court’s “Remain in Mexico” Case

The Supreme Court today will hear arguments over the Biden administration’s effort to end a controversial immigration measure from the Trump era, which requires asylum seekers at the southern border to stay in Mexico while applications are being processed. 

The decision will determine whether the Biden administration must continue the contentious policy despite the Department of Homeland Security’s (DHS) conclusion that the measure is not in the best national interest of the United States. 

The case also concerns how much discretion the executive branch of government has in managing U.S. border enforcement policies. 

Experts say that there are enormous stakes in the case, because elected presidents, not unelected judges, should decide America’s foreign policy. 

A year and a half into Biden’s presidency, an old Trump immigration policy still remains in effect. The “Remain in Mexico” policy was implemented in 2019 and blocks migrants at the border from entering the U.S. to apply for asylum. Tens of thousands of people are left awaiting fates in Mexico and subjected to potential persecution and abuse. The Trump administration sent more than 70,000 asylum-seekers to Mexico under the policy. 

Human rights and immigration advocates have called it a “humanitarian crisis” at the border.  The fate of the policy now is in the hands of the conservatively-dominated Supreme Court in the Biden v. Texas case. 

Biden first announced that the program would be suspended in a June 1, 2021 memo from the Secretary of Homeland Security Alejandro Mayorkas. But then Judge Matthew Kacsmaryk overruled Biden. 

Kacsmaryk is a Trump judge and a former lawyer for a Christian conservative law firm. Before being appointed by Trump, he made many problematic statements, including labeling being transgender as a “mental disorder,” claiming gay people are “disordered,” and denouncing what he called a “sexual revolution.” He ordered Biden to reinstate the border policy in August 2021. 

The Supreme Court rejected the Biden administration’s request to block it. Since then, Mayorkas issued a second memo with a longer explanation of why the Remain in Mexico needs to be appealed. The second thing is that a Republican panel of appeals court judges embraced Kacsmaryk’s reading of federal immigration law. 

So now the Supreme Court will have to decide with enormous stakes. It could ultimately allow Trump’s appointed judges across the country to entrench one of Trump’s policies, even when the American people voted to reject Trump. 

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