Asylum-seekers coming to America through our southern border should apply for their entrance in Mexico. That is a logical and reasonable policy that the Trump administration enacted, but that the Biden administration has been on a mission to end. 

Yesterday, the Supreme Court gave the ‘Remain in Mexico’ policy the green light to continue, ending the partisan back-and-forth for now. 

The federal government can and should use this tool to stop our asylum system from being abused and overwhelmed with cases, especially as we face the potential for thousands of new asylum cases from people fleeing the Taliban in Afghanistan.

What happened

The Biden administration petitioned the Supreme Court to allow it to cancel the Remain in Mexico program (formally known as Migrant Protection Protocols) while it appealed a lower court’s recent decision forcing the government to reinstate the program.

In a 9-3 decision, the Supreme Court refused to block the lower court ruling.

Only the three most liberal justices (Elena Kagan, Sonia Sotomayer, and Stephen Breyer) sided with the Biden administration.

The Wall Street Journal reported that the justices said the government was unlikely to prevail in their case because the administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.”

The next steps are for the case to be heard by an appeals court and it could make its way back to the Supreme Court.

What does the decision mean in practical terms?

In effect, this decision means that Remain in Mexico should be restarted and can continue indefinitely unless the Biden administration attempts to end the program again. 

This is a win for the rule of law but also for migrants truly being persecuted in their homelands. According to the U.S. Citizenship and Immigration Services, people coming to the United States can seek protection from persecution or fear of persecution due to their race, nationality, religion, political opinion, or membership in a particular social group.

At the southern border, there are many migrants attempting to claim asylum, but for the most part, their claims don’t pass muster. Nearly three out of four (73.7 percent) asylum cases were denied last fiscal year.

There may not be immediate impacts from this ruling, because the Biden administration’s legal case to kill off the Remain in Mexico policy is still working through the appellate process.

Also, apart from President Biden’s actions, both the Biden and Trump administrations have not used the protocol. Once the pandemic began in 2020, the government began using the Title 42 measure to turn back migrants at the border on health concerns. If Title 42 was ended—as the Biden administration considered doing this summer but backtracked because of the Delta variant—the Remain in Mexico policy would be in place.

The takeaway

The fight for a secured southern border and upholding the rule of law continues. It’s unfortunate that President Biden seems more committed to supporting illegal immigration by ending policies meant to slow migrant surges than securing the border and pushing for reforms. With over 200,000 apprehensions last month, the highest in two decades, we are on track for at least a million by year’s end.

The cartels and smugglers know that our policies have changed and our position on illegal immigration is weakened. They are more than willing to exploit these changes for their financial benefit. Meanwhile, migrants who may want more opportunity and a better future—all understandable motivations—are coached to claim asylum to gain entrance into the U.S.

Now, with tens of thousands of Afghan refugees due to the Biden administration’s bungled troop withdrawal, there may be many new asylum cases that join our already backlogged immigration system. There are reportedly 1.4 million pending cases in these courts.  

We have a public health, public safety, and humanitarian crisis at the southern border. The Remain in Mexico policy was a tool in our immigration toolbox to address it. At some point, the Title 42 health measures will end. It’s important that we have a policy in place to ensure that we don’t see more surges of migrants. If the Biden administration won’t ensure those measures are in place, hopefully, our federal courts will.

Executive action is no replacement for Congress to fix immigration though. Until they decide to pass immigration reforms, executive orders on the southern border will continue to be served and returned like tennis balls from one administration to another.