< Supreme Court's conservatives divided over 'Remain in Mexico' policy

MARY LOUISE KELLY, HOST:

The U.S. Supreme Court today - some of the conservative justices seemed unusually torn as to whether the Biden administration must continue to enforce the Trump-era Remain in Mexico policy. That policy requires asylum-seekers, mainly from Central and South America, either to be detained in the U.S. or to remain in Mexico while they wait for months or years for hearings in the U.S. NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Sometimes the justices wallop the lawyers on one side and then turn around and deliver equally brutal blows to the other side. That's what several key, conservative justices did today as they considered whether the Biden administration can revoke the Trump-era policy.

The Biden administration's Elizabeth Prelogar told the justices that the immigration law has an escape hatch to deal with the fact that Congress has simply not provided enough money to detain all asylum-seekers. She noted that even the Trump administration could not meet the demands of its own policy because Congress only appropriates enough money to detain 30- to 40,000 people at any given moment, and the number of people who cross the border in every year far exceeds that. Chief Justice Roberts.

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JOHN ROBERTS: You're in a position where the facts have sort of overtaken the law. In that situation, what are we supposed to do? It's still our job to say what the law is. And if we say what the law is and you tell us, we can't do anything about it, where do you think that leaves us?

TOTENBERG: Justice Kavanaugh piled on, asking whether there was any indication when the immigration law was last written that hundreds of thousands of people would be released in the U.S. while they wait for their hearings. Prelogar agreed that Congress preferred detention over release, but it has never come close to providing enough money to pay for that policy, she said. In March of this year, there were over 220,000 border crossings, she noted, but funds for only 30,000 detention beds. And in the Trump administration, similar numbers required the same results. Justice Kavanaugh pressed further.

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BRETT KAVANAUGH: So you agree that Congress has expressed a preference for detention where that's available?

ELIZABETH PRELOGAR: Yes, we do.

TOTENBERG: But as Prelogar noted, since the law was enacted in 1996, no administration, Democratic or Republican, has had the resources to detain all migrants crossing the border.

If Prelogar faced a skeptical court, so did Judd Stone, representing the state of Texas and its claim that the Biden administration cannot revoke the Remain in Mexico policy. First to put him on the spot was Justice Clarence Thomas, the court's most conservative member.

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CLARENCE THOMAS: So you could have brought the same lawsuit against the last administration?

JUDD STONE: We could have brought a related lawsuit.

THOMAS: So has any administration ever complied with 1225 under your reading?

STONE: I assume not, Your Honor.

THOMAS: Wouldn't it be odd for Congress to leave in place a statute that would appear to be impossible to comply with?

TOTENBERG: Chief Justice Roberts seemed to agree.

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ROBERTS: I think it's a bit much for Texas to substitute itself for the secretary and say that you may want to terminate this, but you have to keep it because it will reduce, to a slight extent, your violations of the law.

TOTENBERG: Justice Kagan wondered how it is that a federal court can tell the executive branch how to implement its foreign and immigration policy.

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ELENA KAGAN: And that's what this does. It puts the United States, essentially, at the mercy of Mexico. Mexico knows that, you know, if we come out your way, well, Mexico has all the leverage in the world to say, well, you want to comply with the court's order, here are 20 things that you need to do for us.

TOTENBERG: Justice Kavanaugh pointed to what he called a catch-all provision in the law that he suggested would seem to allow for release of migrants in the U.S. pending their hearings. And Justice Barrett pointed to the federal government's interest in prioritizing detention for the most dangerous migrants seeking to enter the U.S.

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AMY CONEY BARRETT: If they're right about that, you lose, right?

TOTENBERG: We'll see what the answer to that is when the court decides the case, probably in late June.

Nina Totenberg, NPR News, Washington.

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