Will the Supreme Court be as deferential to Biden on immigration as it was to Trump?

Will the Supreme¹ Court be as deferential² to Biden on immigration as it was to Trump³?

Transcript⁴

Another day, another hot-button issue at the U.S. Supreme Court. This time the question is whether the Biden administration must continue to enforce the Trump-era program known as Remain in Mexico. The policy requires asylum⁵-seekers, mainly from Central and South America, to remain in Mexico while they wait for a hearing in a U.S. immigration court.

The Trump administration devised the Remain in Mexico policy in hopes of deterring⁶ migrants from streaming into the U.S. with asylum claims. The Biden administration suspended the program immediately upon taking office, but the 5th U.S. Circuit Court of Appeals, acting⁷ on a challenge brought by Texas and Missouri, ordered the new administration to continue the Trump policy. On Tuesday, the Supreme Court hears the argument in an expedited appeal.

The case centers on the meaning of numerous immigration provisions, how they have been interpreted for decades and, bluntly put, whether the Supreme Court will be as deferential to the Biden administration as it was to the Trump administration when it comes to immigration enforcement policies.

How the law works

Immigration law operates like a Russian nesting doll: You open it up, and another doll is inside and then another and another.

According to the states of Texas and Missouri, backed by 21 other red states, the law says that all asylum-seekers "shall be detained," and "shall" means that they must be detained for however long it takes until their cases are decided⁸ in court.

"The administration basically has two choices," says Indiana Solicitor⁹ General Thomas Fisher. "You either detain people seeking asylum at the border," or "if you don't have the detention¹⁰ space, you're sort of left with returning them to Mexico." Fisher wrote an amicus brief on behalf of 19 states supporting Texas and Missouri.

But that is not the way the law has ever been enforced by any administration, Democratic or Republican, including the Trump administration. In fact, while the "shall" language has been in the immigration law since 1903, so has other arguably contrary language, using qualifiers and words such as "may."

For example, another provision says the government "may" release asylum-seekers into the U.S. "on a case-by-case basis for 'urgent humanitarian¹¹ reasons.' " The Biden administration argues that this provision serves as an alternative release valve, allowing the government to release asylum-seekers who "present neither a security risk nor a risk of absconding¹²."

A complicated issue

Former immigration officials, Republican and Democratic, say there's a good reason for the fudgy language: Everything about borders is complicated. To begin with, there has been no major rewrite of the nation's immigration laws in more than 25 years. The last time the law was updated, in 1996, legislative¹³ disagreements were resolved with compromise language to deal with the fact that, on the one hand, Congress wanted to make it more difficult to release asylum-seekers pending¹⁴ their hearings and, on the other, detaining everyone would be prohibitively expensive.

At no time since the 1996 law was passed has everyone - or even most of the people - seeking asylum been detained, including in the Trump years.

The problem is that "Congress has only appropriated money for Homeland Security to detain around 30- to 40-thousand individuals at any given moment," says Stewart Verdery, who served as assistant secretary of homeland security during George W. Bush's administration. These days, Verdery observes, over a million people cross the border a year, so "by definition, you can't detain everybody."

Did Remain in Mexico work?

Immigration specialists disagree as to how effective the Remain in Mexico policy has been as a deterrent¹⁵.

Indiana's solicitor general, Fisher, argues that the Trump program was working. "The volume of applicants¹⁶ showing up at the border decreased precipitously," he says, citing a 2019 report by the Trump administration.

"That's false," says Jeh Johnson, who served as the Obama-era secretary of homeland security from 2013 to 2017. On the Trump administration's watch in 2019, "we had almost 1 million apprehensions¹⁷ on our southern border ... the highest number we've seen in years," Johnson observes.

Under the Trump administration, only 68,000 people were put into the Remain in Mexico program by Customs and Border Protection - a tiny fraction of those seeking asylum in the United States.

Implications for foreign policy

At the heart of all this is a separate legal question: whether the courts should second-guess the foreign policy judgments¹⁸ that undergird this and other immigration policies. At this point, neither Mexico nor the Biden administration wants Remain in Mexico to continue. Both see it as a flawed program in which migrants in squalid camps at the border have little ability to find lawyers or information for their hearings and are subject to violent attacks, kidnapping, extortion and rape¹⁹ by criminal cartels.

What's more, the Biden administration sees the lower court's order as invading its ability to deal effectively with Mexico. A group of former immigration officials from both parties echoes that point in friend-of-the-court briefs filed in this case.

For instance, Verdery points to the port of San Ysidro, south of San Diego, the busiest port of entry in the U.S., with 32 lanes of traffic, trucks, cargo²⁰, tourists and an unknown number of migrants trying to cross the border illegally. It's a place where billions and billions of dollars in trade and people transit²¹ across the border every day, according to Verdery, and managing priorities with Mexico is a complicated and fluid task.

To cite just one example, he notes that after the 9/11 attacks, the U.S. and Mexico went to a maximum level of protection and then over time relaxed restrictions²² because the economies in both countries were suffering. Such continually changing circumstances are part of why the courts have largely deferred²³ to the executive branch in managing the border with Mexico.

"This is something that has to be worked out between governments, and it really is not a place for a court to get involved," Verdery says.

Johnson, the former DHS secretary, echoes that sentiment, contending that the lower court was outside its constitutional lane when it told the executive branch of the U.S. government to tell the government of Mexico to restore Remain in Mexico. "Rarely, if ever, has a court decision intruded²⁴ into the foreign policy of the United States in this way," Johnson says.

But countering that argument, Texas and other Republican-dominated states argue that in 1996 Congress intended to narrow the executive branch's discretion²⁵ and that now is the time to hold true to that mandate²⁶.

1 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

2 deferential   

adj. 敬意的，恭敬的

参考例句：

• They like five-star hotels and deferential treatment.他们喜欢五星级的宾馆和毕恭毕敬的接待。
• I am deferential and respectful in the presence of artists.我一向恭敬、尊重艺术家。

3 trump   

n.王牌，法宝；v.打出王牌，吹喇叭

参考例句：

• He was never able to trump up the courage to have a showdown.他始终鼓不起勇气摊牌。
• The coach saved his star player for a trump card.教练保留他的明星选手，作为他的王牌。

4 transcript   

n.抄本，誊本，副本，肄业证书

参考例句：

• A transcript of the tapes was presented as evidence in court.一份录音带的文字本作为证据被呈交法庭。
• They wouldn't let me have a transcript of the interview.他们拒绝给我一份采访的文字整理稿。

5 asylum   

n.避难所，庇护所，避难

参考例句：

• The people ask for political asylum.人们请求政治避难。
• Having sought asylum in the West for many years,they were eventually granted it.他们最终获得了在西方寻求多年的避难权。

6 deterring   

v.阻止，制止( deter的现在分词 )

参考例句：

• However, investors say are a number of issues deterring business. 然而，投资者表示，有很多问题让他们却步。 来自互联网
• It's an effective way of deterring potential does online, the logic goes. 逻辑上这是抑制潜在线上威胁的有效方法。 来自互联网

7 acting   

n.演戏，行为，假装；adj.代理的，临时的，演出用的

参考例句：

• Ignore her,she's just acting.别理她，她只是假装的。
• During the seventies,her acting career was in eclipse.在七十年代，她的表演生涯黯然失色。

8 decided   

adj.决定了的，坚决的；明显的，明确的

参考例句：

• This gave them a decided advantage over their opponents.这使他们比对手具有明显的优势。
• There is a decided difference between British and Chinese way of greeting.英国人和中国人打招呼的方式有很明显的区别。

9 solicitor   

n.初级律师，事务律师

参考例句：

• The solicitor's advice gave me food for thought.律师的指点值得我深思。
• The solicitor moved for an adjournment of the case.律师请求将这个案件的诉讼延期。

10 detention   

n.滞留，停留；拘留，扣留；(教育)留下

参考例句：

• He was kept in detention by the police.他被警察扣留了。
• He was in detention in connection with the bribery affair.他因与贿赂事件有牵连而被拘留了。

11 humanitarian   

n.人道主义者，博爱者，基督凡人论者

参考例句：

• She has many humanitarian interests and contributes a lot to them.她拥有很多慈善事业，并作了很大的贡献。
• The British government has now suspended humanitarian aid to the area.英国政府现已暂停对这一地区的人道主义援助。

12 absconding   

v.（尤指逃避逮捕）潜逃，逃跑( abscond的现在分词 )

参考例句：

• He was charged with absconding from lawful custody. 他被指控从合法监护人那里逃走。 来自互联网

13 legislative   

n.立法机构，立法权；adj.立法的，有立法权的

参考例句：

• Congress is the legislative branch of the U.S. government.国会是美国政府的立法部门。
• Today's hearing was just the first step in the legislative process.今天的听证会只是展开立法程序的第一步。

14 pending   

prep.直到，等待…期间；adj.待定的；迫近的

参考例句：

• The lawsuit is still pending in the state court.这案子仍在州法庭等待定夺。
• He knew my examination was pending.他知道我就要考试了。

15 deterrent   

n.阻碍物，制止物；adj.威慑的，遏制的

参考例句：

• Large fines act as a deterrent to motorists.高额罚款是对开车的人的制约。
• I put a net over my strawberries as a deterrent to the birds.我在草莓上罩了网，免得鸟歇上去。

16 applicants   

申请人，求职人( applicant的名词复数 )

参考例句：

• There were over 500 applicants for the job. 有500多人申请这份工作。
• He was impressed by the high calibre of applicants for the job. 求职人员出色的能力给他留下了深刻印象。

17 apprehensions   

疑惧

参考例句：

• He stood in a mixture of desire and apprehensions. 他怀着渴望和恐惧交加的心情伫立着。
• But subsequent cases have removed many of these apprehensions. 然而，随后的案例又消除了许多类似的忧虑。

18 judgments   

判断( judgment的名词复数 )； 鉴定； 评价； 审判

参考例句：

• A peculiar austerity marked his judgments of modern life. 他对现代生活的批评带着一种特殊的苛刻。
• He is swift with his judgments. 他判断迅速。

19 rape   

n.抢夺，掠夺，强奸；vt.掠夺，抢夺，强奸

参考例句：

• The rape of the countryside had a profound ravage on them.对乡村的掠夺给他们造成严重创伤。
• He was brought to court and charged with rape.他被带到法庭并被指控犯有强奸罪。

20 cargo   

n.(一只船或一架飞机运载的)货物

参考例句：

• The ship has a cargo of about 200 ton.这条船大约有200吨的货物。
• A lot of people discharged the cargo from a ship.许多人从船上卸下货物。

21 transit   

n.经过，运输；vt.穿越，旋转；vi.越过

参考例句：

• His luggage was lost in transit.他的行李在运送中丢失。
• The canal can transit a total of 50 ships daily.这条运河每天能通过50条船。

22 restrictions   

约束( restriction的名词复数 )； 管制； 制约因素； 带限制性的条件（或规则）

参考例句：

• I found the restrictions irksome. 我对那些限制感到很烦。
• a snaggle of restrictions 杂乱无章的种种限制

23 deferred   

adj.延期的，缓召的v.拖延，延缓，推迟( defer的过去式和过去分词 )；服从某人的意愿，遵从

参考例句：

• The department deferred the decision for six months. 这个部门推迟了六个月才作决定。
• a tax-deferred savings plan 延税储蓄计划

24 intruded   

n.侵入的，推进的v.侵入，侵扰，打扰( intrude的过去式和过去分词 )；把…强加于

参考例句：

• One could believe that human creatures had never intruded there before. 你简直会以为那是从来没有人到过的地方。 来自辞典例句
• The speaker intruded a thin smile into his seriousness. 演说人严肃的脸上掠过一丝笑影。 来自辞典例句

25 discretion   

n.谨慎；随意处理

参考例句：

• You must show discretion in choosing your friend.你择友时必须慎重。
• Please use your best discretion to handle the matter.请慎重处理此事。

26 mandate   

n.托管地；命令，指示

参考例句：

• The President had a clear mandate to end the war.总统得到明确的授权结束那场战争。
• The General Election gave him no such mandate.大选并未授予他这种权力。