The New Yorker:

In a 5–4 decision, the Court allowed the White House to end Trump’s “Remain in Mexico” program—for now.

By Jonathan Blitzer

For the past year, one of the Biden Administration’s most significant immigration initiatives—its decision to end a Trump-era policy called the Migrant Protection Protocols, also known as “Remain in Mexico”—has been blocked by a federal judge in Texas. Until the pandemic, when the U.S. effectively ended asylum at the border altogether, M.P.P. was the most aggressive immigration policy of the Trump era: it forced some sixty thousand asylum seekers to wait indefinitely in dangerous encampments in Mexico while their cases inched through American immigration courts. Biden campaigned against it, and immediately wound it down once in office. In August, 2021, after two state attorneys general filed a lawsuit against the President, the Texas judge issued an injunction, halting the Administration’s efforts and reinstating the Trump policy. The conservative Fifth Circuit Court of Appeals upheld the decision. But, on Thursday morning, in a surprise 5–4 decision written by the Chief Justice John Roberts and joined by Brett Kavanaugh, the Supreme Court gave Biden a narrow but notable victory. The district court could still strike down Biden’s policy. For now, though, the injunction blocking the President from ending M.P.P. is lifted.

The ruling, Biden v. Texas, underscored just how extreme the lower courts’ reasoning had been—and, by extension, how entrenched the conservative position on immigration enforcement has become. The Fifth Circuit ruled that the President had only two options for handling new arrivals at the border: it could detain them or expel them. Because of limited detention capacity, the logic went, ending M.P.P. meant that the government was breaking the law by allowing some migrants into the U.S. while they applied for asylum. “The problem,” Roberts wrote, “is that the statute does not say anything like that.” The federal government has never been able to detain everyone at the border (not that it hasn’t tried), and for decades Democratic and Republican Administrations, including Donald Trump’s, allowed asylum seekers into the country. “Obviously, this is a victory,” Judy Rabinovitz, an A.C.L.U. attorney who has been litigating M.P.P. since 2019, told me. “It is a resounding rejection of the Fifth Circuit.”

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