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Sight Magazine – Essay: U.S. Supreme Court ‘Stay in Mexico’ ruling puts immigration policy in voters’ hands – as long as presidents-elect play by the rules

In the very last decision of his last mandatethe United States Supreme Court issued a landmark decision that not only crosses a barrier to end a Trump administration signature policy, but also signals that the future of immigration policy is in the hands of the electorate.

In Biden vs. TexasThe Supreme Court has rejected an effort to prevent the current president from backtracking on a Trump-era policy that requires asylum seekers arriving at the US southern land border to be sent back to Mexico while processed of their requests.

Migrants seeking U.S. work visas are seen waiting in a park in downtown Monterrey, Mexico March 27, 2020. PHOTO: Reuters/Daniel Becerril.

The five to four decision means that the case will be sent to the lower courts. But it also makes it clear that whoever controls the White House has the power to change the direction of immigration policy — even drastic policy reversals. It follows that presidents can do the same in other substantive legal areas, such as civil rights and environmental protection.

The rights (and wrongs) of staying
The question in Biden v Texas was whether the Biden administration could dismantle a policy of the Trump administration formally known as Migrant protection protocols but widely referred to as the “Stay in Mexico” policy.

“The five-to-four decision means the case will go to lower courts. But it also makes it clear that whoever controls the White House has the power to change the direction of immigration policy — even drastic policy reversals. It follows that presidents can do the same in other substantive legal areas, such as civil rights and environmental protections.”

As part of a series of immigration enforcement actions, the Trump administration announced the policy at the end of 2018 in response to the number of migrants arriving at the US-Mexico border.

But migrant protection protocols has been subject to scrutiny amid concerns about security and conditions to which asylum seekers were subjected in camps placed under the surveillance of the Mexican authorities. Human Rights Watch found the policy sent “asylum seekers at risk of kidnapping, extortion, rape, and other abuses to Mexico” while violating “their right to seek asylum in the United States.”

Yet an attempt by the Biden administration to eliminate the protocols was banned by the United States Court of Appeals for the fifth circuit. Circuit judges found the Biden administration violated immigration law requiring the detention of asylum seekers.

The Supreme Court overturned this decision. In a majority opinion Written by Chief Justice John Roberts — joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Brett Kavanaugh — the court ruled that the Biden administration’s decision to end migrant protection protocols did not violate the federal immigration law. The state of Texas had argued that the end of the “Remain in Mexico” policy violated a provision that any asylum seeker entering the country must be returned or detained.

In his dissent, Judge Samuel Alito argued that the law requires the mandatory detention of migrants at the border. JusticeAmy Coney Barrett dissent expressed the opinion that the Supreme Court lacked jurisdiction and that the case should be referred to the lower courts.



Avoid the arbitrary, stop the capricious
The Supreme Court’s decision means the case will be sent back to the lower court to decide, but with the removal of a major legal hurdle preventing Biden from ending the “Stay in Mexico” policy. The Supreme Court held that the immigration law did not require the mandatory detention of all asylum seekers while their claims were considered.

But moreover, the court made it clear that the president has the discretion to change direction in immigration policy and to continue or end the policies of the previous president.

It may seem obvious. But that comes after another five-to-four ruling written by Chief Justice Roberts – 2020s Department of Homeland Security vs. University of California Regentswho argued that a president could not act irrationally in changing immigration policy.

In this decision, the Supreme Court found that the Trump administration acted arbitrarily and capriciously by repealing the Obama administration Deferred Action for Childhood Arrivals – or DACA – policy. This policy granted limited legal status and work authorization to undocumented migrants who arrived in the country as children, the so-called Dreamers.

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In the court’s view, the Trump administration failed to sufficiently consider the interests of migrant children in deciding to cancel the policy and gave inconsistent reasons on the basis of the cancellation.

The move provided fuel for states to challenge the Biden administration when it tried to roll back some Trump-era policies. For example, Arizona, along with other states, challenged Biden’s attempt to drop a rule change proposed by the previous administration that would tighten requirements for low- and moderate-income noncitizens seeking to come. in the USA. Although the Supreme Court initially agreed to review the case, it eventually dismissed the appeal and declined to rule on the merits.

Ultimately, the Supreme Court’s decision in Biden v Texas represents the simple proposition that presidential elections matter as far as government policy is concerned. As long as an incumbent administration follows the rules — including rational deliberation of policy choices before it — it can, the Supreme Court said, change immigration policy.The conversation

Kevin Johnsonis Dean and Professor of Public Interest Law and Chicana/o Studies at the University University of California, Davis. This article is republished from The conversation under Creative Commons license. Read it original article.


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