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‘Violates The Clear Terms Of The Law’: Justice Alito Hammers Biden Administration

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OPINION: This article may contain commentary which reflects the author's opinion.


The administration of President Joe Biden scored its only major victory of this session of the Supreme Court when it was decided that it could end the Trump-era Remain in Mexico policy, but it was not sans controversy.

In a dissenting opinion, Justice Samuel Alito on Thursday said that the administration’s policy of not enforcing the policy “violates the clear terms of the law,” Fox News reported.

“In the fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border,” the Justice said in his dissenting opinion signed on to by Justices Neil Gorsuch and Clarence Thomas.

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“When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided? Congress has provided a clear answer to that question, and the answer is no,” he said. “By law, if an alien is ‘not clearly and beyond a doubt entitled to be admitted,’ the alien ‘shall be detained for a [removal] proceeding.’”

But the government is unable to detain the massive wave of migrants coming across the border each year. Federal law provides a remedy for this problem, Alito says. The Immigration and Nationality Act (INA) says the government “may return the alien to that territory pending a [removal] proceeding” or may parole the aliens “only on a case-by-case basis for urgent humanitarian reasons or a significant public benefit.”

The government and the majority argued that because the law uses the word “may,” the Biden administration can remove, or not remove, migrants at its discretion. But Alito argued that the structure of the INA, written by Congress, “offered the Executive two—and only two—alternatives to detention.”

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“The Government must either: (1) detain them, (2) return them to a contiguous foreign nation, or (3) parole them into the United States on an individualized, case-by-case basis,” the Justice said. “These options operate in a hydraulic relationship: When it is not possible for the Government to comply with the statutory mandate to detain inadmissible aliens pending further proceedings, it must resort to one or both of the other two options in order to comply with the detention requirement to the greatest extent possible.”

He said that the Biden administration has chosen to “release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings.

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“This practice violates the clear terms of the law, but the Court looks the other way,” he said.

Chief Justice John Roberts, in the majority opinion, disagreed with the three dissenting justices.

“The problem is that the statute does not say anything like that. The statute says ‘may.’ And ‘may;’ does not just suggest discretion, it ‘clearly connotes’ it,” he said. “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.’”

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The case involved the Biden administration trying to end the Trump-era policy, which required asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts. The Trump administration sent more than 70,000 asylum-seekers to Mexico under the policy.

In a 5-4 ruling, the Court ruled that President Joe Biden’s administration can terminate the Trump-era immigration policy.

Conservative Justices John Roberts and Brett Kavanaugh joined liberal the justices in the decision.

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“The case reached the Supreme Court after a federal district judge in Texas last year ruled that the Biden administration violated immigration law by not detaining every immigrant attempting to enter the country. U.S. District Judge Matthew J. Kacsmaryk ordered the Biden administration to restart the Migrant Protections Protocols, also called “remain in Mexico,” which the Trump administration first implemented in January 2019 and the Department of Homeland Security Secretary Alejandro Mayorkas canceled in June 2021,” the Texas Tribune reported.

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