In a 5-4 decision, with Chief Justice John Roberts and Justice Brett Kavanaugh siding with Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor, the U.S. Supreme Court allowed the Biden administration to end the “Remain in Mexico” policy.


“Remain in Mexico” (officially termed the Migrant Protection Protocols) is an immigration policy created in response to the surge of immigrants coming across the southern border from Mexico.

Originally implemented in January 2019 under the administration of President Donald Trump, it required that non-Mexican migrants seeking asylum in the U.S. remain in Mexico until their U.S. immigration court date.

According to federal immigration law, the federal government is supposed to detain immigrants while they await the hearing of their case. However, Congress has never allocated enough money to detain the rising number of illegal migrants who need to be detained.

Under “Remain in Mexico,” the U.S. government may return migrants to Mexico if there is no room in the detention centers. However, President Joe Biden wishes to release the migrants into the United States and simply hope they show up for their court dates.

The Legal Battle

In February 2021, the Biden administration ended enforcement of the “Remain in Mexico” program. Texas and Missouri immediately sued the Biden administration.

Judge Kacsmaryk of a U.S. District Court in Amarillo ruled that federal immigration laws required returning noncitizens seeking asylum to Mexico whenever the federal government lacked the resources to detain them. Since there are not enough resources to detain the migrants, terminating the “Remain in Mexico” program and allowing illegal migrants to roam free in the United States violates federal law.

The issue before the Supreme Court was whether the suspension and termination of “Remain in Mexico” violated the federal law.

During the Supreme Court oral arguments, Biden’s administration argued the provision in immigration law was discretionary and the lower court’s decision meant that “every presidential administration, in an unbroken line for the past quarter century, has been in open violation” of the law.

Roberts, in his majority opinion, said the lower court’s ruling against the administration “imposed a significant burden upon the executive’s ability to conduct diplomatic relations with Mexico.”

Roberts argued the United States cannot return migrants who are from Central America to Mexico without negotiating the returns with Mexican officials.

In short, because the federal law allowing the return of illegal migrants to Mexico has never really been enforced, and because sending them back to Mexico would strain U.S.-Mexico relations, illegal migrants must be allowed to stay in the United States.

However, Texas Attorney General Ken Paxton disagreed with the court’s decision, saying, “Today’s decision by the U.S. Supreme Court is an unfortunate one, and I believe it was wrongly decided.”

He continued, “The [Biden] Administration dragged its feet and refused to implement this effective program in good faith, allowing hundreds of thousands of illegals to pour over the border month after month. Today’s decision makes the border crisis worse.”

Instead, Paxton agreed with Justice Alito’s dissent, which states:

When it appears that [an] alien is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided? Congress has provided a clear answer to that question, and the answer is no. Those requirements, as we have held, are mandatory.

“This practice violates the clear terms of the law,” Alito continued, “but the court looks the other way.”

Juliana Berg

Juliana is a summer fellow for Texas Scorecard. She is studying political science and philosophy at the University of Texas at Austin. She enjoys learning about the philosophies that shape America.