President Joe Biden faces political peril as a showdown at the Supreme Court on immigration coincides with widespread criticism of his plan to end pandemic-related border controls.
Justices on Tuesday will consider whether Biden can end former President Donald Trump’s “remain in Mexico” policy, which has forced tens of thousands of asylum-seekers to stay south of the border while their applications are processed. A federal trial judge ordered the Biden administration to restart the program.
A ruling against the administration would further complicate Biden’s handling of immigration — an issue on which voters already give him low marks, polls show. Republicans are preparing to highlight the migrant surge at the southern border in the November elections, while a growing number of Democratic lawmakers are distancing themselves from the administration’s plan to scrap the separate, pandemic-driven Title 42 border controls, fearing the influx will only worsen.
“Republicans smell blood,” said Frank Sharry of the liberal immigrant-rights group America’s Voice. Democrats are “getting division in the ranks,” he said.
There are no easy answers for the president. His Democratic base has vented frustration at the slow progress of rolling back his predecessor’s policies. At the same time, near-record border apprehensions have fueled Republican accusations that Biden’s desire for more welcoming policies are to blame — something that in turn has fired up GOP voters.
Border agents had more than 221,000 encounters with migrants last month at the southwest border, the highest numbers in at least two decades.
Tuesday’s “remain in Mexico” arguments may give critics fresh ammunition. The administration’s courtroom opponents, Texas and Missouri, say termination of the Migrant Protection Protocols program would mean the “en masse release” of undocumented immigrants into the country.
The states say illegal crossings and border encounters soared after the program’s temporary suspension last year. A brief filed by the America First Legal Foundation, a group founded by former Trump policy adviser Stephen Miller, said the Biden administration has released 750,000 undocumented immigrants since taking office.
Immigration advocates say that characterization is misleading, pointing to studies finding the vast majority of asylum seekers show up for their hearings. They say the policy forces people to live in dangerous and squalid conditions in Mexico and makes it more difficult for migrants to secure legal assistance.
“It has effectively ended asylum access for thousands and thousands of people since it went into effect,” said Ahilan Arulanantham, a professor and co-director of the UCLA School of Law’s Center for Immigration Law and Policy, which filed a brief backing the administration.
Biden’s Department of Homeland Security rescinded the program last year, but U.S. District Judge Matthew Kacsmaryk in Texas ordered it reinstated, saying the administration was violating federal immigration law and its explanation for the change was inadequate under the law that governs administrative agencies. A federal appeals court upheld that order.
The conservative-dominated Supreme Court hinted at its leanings in August, rejecting Biden’s request to block Kacsmaryk’s ruling while the litigation went forward.
