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April 26 (UPI) -- The Supreme Court questioned the Biden administration and an attorney from Texas over whether the federal government should be made to keep a Trump-era program that forces migrants seeking asylum to wait in Mexico. The Remain in Mexico program, formally known as the Migrant Protection Protocols, or MPP, was used by former President Donald Trump in 2019 to limit illegal immigration.
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Biden revoked the program on his first day in office in January 2021, but the Supreme Court later ruled that the government had to restart the program until the White House could justify ending it. The Biden administration had failed to get rid of it at the lower court level.
Solicitor General Elizabeth Prelogar argued that the district court overstepped its authority and has hamstrung Homeland Security Alejandro Mayorkas from establishing his own program.
"Only this court has the jurisdiction to enter an injunction like that," Prelogar said.
Judd Stone II, from the Texas Attorney General's Office, said the administration did not have a choice but either detain or return migrants to Mexico and did not have any other option. He said Congress has maintained that it wants detention of violators.
Justices said Congress has never provided the funds to adequately detain migrants crossing the border. Stone said the administration is obligated to make its best effort to comply with the law.
"To put it candidly, fewer statutory violations of [MPP] is better than more." Stone said. "The United States is required to attempt to comply even in the face of limited resources or at best it can with the resources it has been appropriated."
When the justices asked if the ruling leaves the federal government at the whims of Mexico and how they will cooperate with them in instituting MPP, Stone said the government must still go to court and prove that it can no longer implement the protocols in good faith because of non-cooperation.
Justice Stephen Breyer suggested the law gives the Biden administration the leeway to institute MPP, particularly in the face of a lack of funding for it.
The justices tried to determine in the hearing if MPP was the only legal way to comply with congressional orders against releasing would-be refugees into the United States as they wait for hearings.
Biden's administration had contended that Trump's program is discretionary and can lawfully be undone.
Tens of thousands of asylum seekers were affected by Trump's program and human rights advocates argue that the policy endangers the lives of the immigrants as they have no choice but to seek refuge in squalid and dangerous tent camps on Mexico's side of the border. Further compounding their problem, the advocates note, is that many are never able to find attorneys to argue their case -- and if they do, some cannot afford the legal costs.
U.S. District Judge Matthew Kacsmaryk last year ruled in favor of the lawsuits by Texas and Missouri that blocked the MPP's removal. He said Biden's order did not give sufficient weight to the "main benefits" of MPP and said that removing the policy would cause the states harm because asylum seekers allowed to wait in the United States would likely access government services and send their children to schools in both states.
Following the ruling, Homeland Security Secretary Alejandro Mayorkas released a second, more extensive memo seeking to end the policy in October, arguing that the benefits for maintaining MPP "do not justify the costs." The U.S. Court of Appeals for the 5th Circuit, however, upheld Kacsmaryk's order.
