The Supreme Court ruled Thursday in a 5-4 decision that the Biden administration can repeal the Trump administration’s Migrant Protection Protocols, commonly known as the “Remain in Mexico” policy, reversing a lower court ruling.

Under that policy, migrants seeking entry into the U.S. had to stay in Mexico as they awaited hearings. The Trump administration put the policy in place so that migrants would not be released into the U.S. The Biden administration had tried to repeal the policy but was previously blocked by a lower court. At issue was whether the Department of Homeland Security’s suspension and subsequent termination of the policy violated a federal law that requires that migrants be detained or, if they arrived from a contiguous country, sent back.

“[T]he Government’s rescission of MPP did not violate section 1225 of the INA [Immigration and Nationality Act], and the October 29 Memoranda did constitute final agency action,” Chief Justice John Roberts wrote in the Court’s opinion.

The statute Roberts cited, 8 U.S.C. Section 1225, says that someone applying for admission “shall be detained for a proceeding” unless they are “clearly and beyond a doubt entitled to be admitted,” and also says if they are from a contiguous territory like Mexico, “the Attorney General may return the alien to that territory” as they await a hearing. Texas and Missouri had pointed to this language in arguing that the Remain in Mexico policy was necessary to adhere to this law. Without the ability to detain everyone, the states argued in their lawsuit, sending them back when possible is necessary.

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{snip} Justice Samuel Alito – joined by Justices Clarence Thomas and Neil Gorsuch – argued that the government does not have the authority to release migrants into the U.S. if it is believed that they are not eligible for admission.

“When it appears that one of these aliens 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,” Alito wrote, citing statutory language that in such a case, a migrant “shall be detained” for either removal or consideration of an asylum application.

While Alito acknowledged – as Roberts and Kavanaugh had – that returning a migrant who came from a contiguous territory is only one alternative along with parole, he cited a separate law that said parole is only to be used “on a case-by-case basis for urgent humanitarian reasons or a significant public benefit.”

“Due to the huge numbers of aliens who attempt to enter illegally from Mexico, DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible,” Alito wrote. “But rather than avail itself of Congress’s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings.”

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