The Supreme Court gave Biden a small victory on immigration—but the case isn’t over yet

By Sam Becker

June 30, 2022

Today, the Supreme Court ruled that the Biden administration’s scuttling of the Migrant Protection Protocol—which has also been referred to as the “Remain in Mexico” policy—didn’t violate federal immigration law. The Protocol, put in place under the Trump administration in 2019, required that some asylum-seekers await their immigration proceedings in Mexico. 

The ruling was a 5-4 decision, with Chief Justice John Roberts comprising the majority along with Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh. It was the final ruling of the term.

“The Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda did constitute final agency action,” the ruling reads. “We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.” 

The case centered around whether the Department of Homeland Security would be required to keep enforcing it, or whether the Biden administration had the power to get rid of the Protocol, and it ruled that it, indeed, does. However, the case will return to the lower courts for further litigation.

The Biden administration stopped enforcing the Protocol in February 2021, after ordering a review of it on his first day in office—but was then ordered to reimplement it by a Texas district court after his attempt to end it was challenged by several Republican-led states.

In effect, the ruling removes a hurdle for migrants on the southern border seeking asylum—most of whom had been turned back to Mexico since the Protocol was in effect. Those migrants often faced dangerous conditions, which led to outcries from humanitarian and immigration-rights groups. 

Conservatives, however, viewed the Trump-era policy as critical to slowing the growing number of immigrants coming from Central and South America. Justice Samuel Alito, among the Court’s more conservative members, wrote in a dissenting opinion that DHS shouldn’t be able to “simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings.”

Again, the case isn’t fully decided and will return to the lower courts to be further hashed out. But the ruling does represent a small win for the Biden administration, which came minutes after a big loss in a separate ruling (West Virginia v. EPA), in which the Supreme Court also curbed the Environmental Protection Agency’s ability to regulate power plants.