By: Lisa Soronen, State and Local Legal Center, Washington, D.C.
In Biden v. Texas, the U.S. Supreme Court held 5-4 that the Biden administration may end the Migrant Protection Protocols (MPP). MPP was a Trump administration program which provided for the return to Mexico of non-Mexicans who were detained attempting to enter the United States at the United States-Mexico border. On Inauguration Day, President Biden announced he would suspend the program the next day, and he ultimately sought to terminate it. Texas and Missouri argued that MPP can’t be rescinded. The Supreme Court disagreed in an opinion written by Chief Justice Roberts. The statutory basis for MPP is Section 1225(b)(2)(C) of the Immigration and Nationality Act (INA) which states: “In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Both sides agree that the “may” language in Section 1225(b)(2)(C) makes it discretionary. But Texas and Missouri point to Section 1225(b)(2)(A) which states “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” Texas and Missouri argue that because Section 1225(b)(2)(A) makes detention mandatory, “the otherwise-discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that detention mandate.” The Court rejected this argument first noting “[t]he problem is that the statute does not say anything like that.” “If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any non-compliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term ‘may.’”