Immigration and Citizenship

RELEASE: Key Weaknesses in States’ Position Exposed at Supreme Court Oral Argument re MPP 

WASHINGTON – Following oral argument at the Supreme Court this morning in Biden v. Texas—a case about whether a provision of the Immigration and Nationality Act (INA) requires the Biden administration to continue implementing the Trump Administration’s Migrant Protection Protocols (MPP) in the face of insufficient detention capacity—Constitutional Accountability Center Appellate Counsel Miriam Becker-Cohen issued the following reaction:

While the Justices asked tough questions of both sides, key exchanges echoed points we made in the brief we filed on behalf of a bipartisan group of former officials from the Department of Homeland Security and Immigration and Naturalization Service. Among other examples, Solicitor General Prelogar emphasized, and the Justices seemed to agree, that the Fifth Circuit’s conclusion that MPP is mandatory would have far-reaching implications for the ability of the executive branch to properly manage foreign affairs. Prelogar also highlighted a key point, which we made in our brief, that the parole statute is a viable alternative to MPP in the face of insufficient detention capacity because the requirement that parole be granted on a “case-by-case basis” does not impose any limitation on the total number of noncitizens who may be paroled. Finally, all the Justices seemed to recognize, and the attorney for the States conceded, that under the States’ interpretation of the contiguous territory return provision of the INA, every single administration—including former President Trump’s—has violated that provision. As we explained in our brief, even on its own, that fact suggests that the States’ interpretation is wrong.

We urge the Court to reverse the decision of the Fifth Circuit and look forward to a ruling in the weeks ahead.

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Resources:

CAC case page in Biden v. Texas, including brief on behalf of a bipartisan group of former Department of Homeland Security and Immigration and Naturalization Service officials: https://www.theusconstitution.org/litigation/biden-v-texas/

CAC Release: Bipartisan Former DHS, INS Officials Say to SCOTUS: Fifth Circuit Got It Wrong on MPP, March 21, 2022: https://www.theusconstitution.org/news/release-bipartisan-former-dhs-ins-officials-say-to-scotus-fifth-circuit-got-it-wrong-on-mpp/

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Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

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