Legal Docket - Detention debate

MARY REICHARD, HOST: It’s Monday, May 9th, 2022. This is The World and Everything in It and we’re so glad you are along with us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

The law and culture are preoccupied with the leak of a draft opinion written in February that overturns the abortion-on-demand regime in all 50 states known as Roe versus Wade.

About the unprecedented leak, perhaps Amy Howe at SCOTUSblog put it most succinctly: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak,” she says, “is the gravest, most unforgivable sin.”

REICHARD: “Most” unforgivable sin is superlative, of course. Yet despite the betrayal by someone within the court, followed pretty predictably by the organized protests, the business of the court goes on.

One final and unanimous opinion handed down last week found that the city of Boston acted unconstitutionally. That, when a city official rejected a Christian flag to fly at city hall as part of its flag-raising program.

That official rubber-stamped applications to fly all the other flags presented to him, including gay Pride Flags and the flags of communist countries. But the official thought it would violate the Establishment Clause to fly a flag with a cross on it.

EICHER: Justice Brett Kavanaugh identified the problem back in January during oral argument:

KAVANAUGH: And it seems like we’ve had case after case after case that has tried to correct that misimpression of the Establishment Clause, and that seems to me what the root cause is here.

The opinion corrects that misimpression, clarifying that the city was not meaningfully involved in the flag-selection process. Therefore, the flags raised are private speech, not government speech, and the city may not exclude private speech based on religious viewpoint.

REICHARD: Alright. Moving on, today we analyze a case argued in April.

It arises out of the mess at the southern border of the United States.

Frustrations are high, especially in communities closer to the border. This local news report out of San Antonio from last fall has been fairly typical.

KENS5-TV: DBS Ltn. Chris Olivaris: Some of the landowners were voicing concerns that illegal immigrants were trespassing on their property, damaging their fences. They didn’t feel safe around their homes. ANCHOR: Olivaris said they’ve arrested convicted felons and criminal gang members, including MS-13.

Frustration with the trespassers, frustration with the U.S. government, which fails to defend the border.

The U.S. Constitution says in Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican form of government, and shall protect each of them from Invasion…”

EICHER: To Americans left to defend themselves, it has the feel of an invasion. One that’s gone on for decades.

It was during the Clinton administration that Congress passed the Migrant Protection Protocols. You’ve likely heard it as the “Remain in Mexico” policy.

That law aimed to fix part of the problem: false asylum claims. Migrants knew U.S. officials would release them into the country pending legal resolution of their claims, and that could take years ultimately to sort out.

So, the Remain in Mexico policy required some asylum seekers to spend the sorting-out years in Mexico.

REICHARD: But the law wasn’t much used until the Trump administration.

And it was effective. The Department of Homeland Security called Remain in Mexico an indispensable tool. Fewer people tried to come in the first place. The government released fewer people into the country. Total border apprehensions decreased by almost two-thirds!

EICHER: But President Biden suspended the Remain in Mexico policy on his first day in office, along with other Trump-era immigration changes. Here he is in February last year.

BIDEN: And the third order I'm going to be signing orders a full review of the previous administration's harmful and counterproductive immigration policies, basically across the board.

REICHARD: “Harmful and counterproductive” policies, depending upon your viewpoint. When President Biden sought to officially end the policy last summer, Texas and Missouri sued to keep it.

They argue the Immigration and Nationality Act that contains the policy explicitly requires those defined under law as illegal aliens to be detained or sent to a bordering nation pending resolution. The states rely on the policy, yet the Biden administration didn’t even consider that. Nor did it abide by the Administrative Procedures Act.

EICHER: The dispute ping ponged around the lower courts.

Now it’s at the Supreme Court.

At oral argument, Solicitor General Elizabeth Prelogar argued on behalf of the president.

Do note: The lawyers refer to Remain in Mexico by the technical name MPP. So when you hear Prelogar say “MPP,” you know she means Migrant Protection Protocols.

PRELOGAR: The Secretary of Homeland Security exercised his statutory discretion to make a policy judgment. He found that the benefits of MPP were outweighed by its domestic, humanitarian, and foreign policy costs. Yet the lower courts ordered DHS to reinstate MPP in perpetuity, requiring ongoing negotiations with Mexico to send thousands of noncitizens into its territory. That was error.

REICHER: Courts just shouldn’t be meddling in foreign relations, she argued.

Prelogar noted the massive numbers: in March of this year, more than 220,000 migrants arrived at the southern border. That’s just in one month.

And the United States only has about 30,000 beds to accommodate them. Prelogar argued that’s why rescinding the Remain in Mexico policy makes sense:

PRELOGAR: And it makes sense because, in a world where we don't have sufficient beds, as everyone acknowledges, there is a imperative public interest in ensuring that we are detaining the people who might be criminals or who might abscond or who threaten our national security and not simply filling those beds on a first come basis with no accounting for the limited detention capacity.

That may be, but the Chief Justice seemed flummoxed:

ROBERTS: If you have a situation where you're stuck because there's no way you can comply with the law and deal with the problem there, I guess I'm just wondering why that's our problem? Our problem is to say what the law is. And if you're in a position where you say, well, we can't do anything about it, what do we do?

Prelogar directed the justices to a simple solution: Just say the lower courts were wrong to rule against the order to rescind that policy.

On the other side arguing for the states, Texas Solicitor General Judd Stone. The law’s the law: either detain migrants or send them back to Mexico to wait. And if there’s no money to detain them, then the only option is return to Mexico.

Stone argued this is within the realm of lower courts, as a procedural question. No foreign policy involvement or negotiation needed.

Justice Elena Kagan stopped him right there:

KAGAN: …what do you mean it doesn't require negotiation with the foreign power? What are we supposed to do? Just drive truckloads of people into Mexico and leave them without negotiating with Mexico?

Stone for the states returned to the policy: it must be continued in good faith. If Mexico obstructs it, then the government can ask the lower courts for help.

You can hear several layers of tension: policy implications, separation of powers, the words of the law, and practicalities on the ground.

Justice Brett Kavanaugh closely questioned Prelogar about the policy first enacted in 1996 under President Clinton. [His use of the word “parole” in the context of immigration means letting certain people enter the country and temporarily stay without a visa. That permission is discretionary and assessed case by case.]

KAVANAUGH: Is there any indication in connection with the '96 Act that anyone in Congress expected that if there was not sufficient detention capacity, that hundreds of thousands of people would be just paroled into the United States without being lawfully admitted? Did anyone say that in Congress?

PRELOGAR: I don't think that there was express history on that point…

…No express history, but Prelogar said Congress was focused on detention practices in 1996, not sending people back to Mexico.

Justice Samuel Alito pointed out the plain phrasing in the law. It says aliens “shall be detained.”

Prelogar nuanced that phrase:

PRELOGAR: What "shall be detained" means is that Congress expected us to use the detention capacity that we have. And that's what we're doing. DHS detains tens of thousands of individuals on any given day. Respondents' interpretation that would remove any discretion would mean that DHS can't take account of that limited capacity in making prioritization decisions.

Lots of back and forth on parts of the law that say “shall” and other parts that say “may.”

Justice Alito pointed out past cases when the government argued the opposite meaning of those words from what it now argues.

And Chief Justice Roberts noticed something else:

ROBERTS: General, your interpretation of the statute, I think, is entirely manipulable so you can have a phrase in the statute mean what you want it to mean to accommodate as many people at the border by releasing them as—as you want, right? There is no limit, as you read the statute, to the number of people that you can release into the United States, right?

PRELOGAR: Congress did not create a limit in that statute, but, of course, it's Congress itself that's making these appropriations decisions about how much bed space to give us.

President Biden’s termination memo last fall cited a “significant public benefit” to rescinding the Return to Mexico policy.

Justice Kavanaugh asked about that “public” aspect.

KAVANAUGH: Is that the American public? Is that the non-citizen public? Who is that? And if it's the American public, there's no real explanation of how the public is benefitted by more people coming into the United States who are not lawfully admitted into the United States rather than trying, if feasible, for some of those people to remain in Mexico.

I don’t want to leave the impression that a majority of justices leaned one way or the other.

Listen to Chief Justice Roberts followed by Justice Kagan:

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…

KAGAN: I mean, it puts Mexico in a position vis-à-vis the United States which I don't think it's really Texas's position to require.

Not long after oral argument, the court ordered the parties to submit more briefs on whether it even has jurisdiction over this controversy.

Still, it’s hard to deny the logic of the 5th Circuit with its withering opinion, quoting here:

“DHS claims the power to implement a massive policy reversal—affecting billions of dollars and countless people—simply by typing out a new Word document and posting it on the internet. No input from Congress, no ordinary rulemaking procedures, and no judicial review…. DHS has come nowhere close to shouldering its heavy burden to show that it can make law in a vacuum….”

It’s the job of Congress to make the law or change it. It’s up to the Executive branch to carry out and enforce the law.

It’s the job of the Court, as the Chief Justice said, to say what the law is. IF it has jurisdiction to do so.

And that’s this week’s Legal Docket.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.