The Biden administration is looking to the Supreme Court in its fight to end the Trump-era “Remain in Mexico” immigration policy after an appeals court rejected their latest effort.
On Wednesday, the Department of Justice petitioned the high court to hear the case, arguing that previous decisions keeping the policy in place contained “erroneous interpretations” of federal law.
The administration has attempted to wind down the policy – officially known as the Migrant Protection Protocols – several times since President Biden took office. Under the policy, migrants seeking asylum in the US are required to wait in Mexico until their cases are heard.
After a federal judge required the administration to reinstate the policy earlier this year, the policy was restarted this month with several changes — including a halt to the separation of families at the border.
In Wednesday’s filing, the administration alleged the lower courts had ordered the program to remain in place “despite determinations by the politically accountable Executive Branch that MPP is not the best tool for deterring unlawful migration; that MPP exposes migrants to unacceptable risks; and that MPP detracts from the Executive’s foreign-relations efforts to manage regional migration.”
The administration has asked the Supreme Court to hear the case during its current term, since any wait would likely push a resolution off until 2023.
“In the meantime, the government would be forced to continue negotiating with Mexico to maintain a controversial program that it has already twice determined is no longer in the best interests of the United States.”
The most recent attempt to end the Trump-era policy was rejected Dec. 13 when the Fifth Circuit Court of Appeals ruled DHS did not use the proper channels to end the program, saying the Department “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.”
“No input from Congress, no ordinary rulemaking procedures, and no judicial review. DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum,” the appeals court added.
It is unclear if the Supreme Court will take up the case. It previously denied an August request from the administration to block a federal judge’s order keeping the policy in place.