Aerial view of a migrants camp where asylum seekers wait for US authorities to allow them to start their migration process outside El Chaparral crossing port in Tijuana, Baja California state, Mexico, on March 17, 2021.
(CNN)The Supreme Court grappled on Tuesday with whether the Biden administration can terminate a Trump-era border policy known as "Remain in Mexico" in a case that will test the White House's ability to set immigration policy.Some conservatives on the court asked tough questions of the administration and suggested sympathy for lower court opinions that went against President Joe Biden.Justice Samuel Alito at one point implied that the lower courts were correct to hold that the Trump program could be necessary in order to comply with the immigration law. And Justice Clarence Thomas suggested that the government has limited discretion to parole those who arrive.But Chief Justice John Roberts expressed sympathy for the government's argument that it wants to end a program that had been put forward by the previous administration. He seemed puzzled as to how to handle the lower court opinions that interpreted immigration law to require the program -- or one like it."What are we to do?" he queried.The court's three liberals, meanwhile, backed the Biden administration and arguing that requiring the program to remain in place would have severe diplomatic consequences. It was unclear by the end of arguments if there were five votes in favor of Biden's position.
Justice Elena Kagan worried about diplomatic concerns if the court required the Biden administration to continue implementing a program so dependent upon the cooperation of Mexico. She said such a decision would put the United States at the "mercy of Mexico" and that it could change its mind at any time to change conditions.
When a lawyer for Texas defending the Trump-era program suggested that diplomatic relations would not be in play, Kagan responded, "What are we supposed to do? Drive truckloads of people into Mexico without negotiating?"
Under the unprecedented program launched in 2019, the Department of Homeland Security sent certain non-Mexican citizens who entered the US back to Mexico -- instead of detaining them or releasing them into the United States -- while their immigration proceedings played out.
Critics call the policy inhumane and say it exposes asylum seekers with credible claims to dangerous and squalid conditions. Migrants subject to the program -- formally known as Migrant Protection Protocols -- have resided in makeshift camps along Mexico's northern border.
Remain in Mexico is separate from the public health authority, known as Title 42, that allows border officials to turn back migrants encountered at the border, therefore barring them from seeking asylum, unlike "remain in Mexico," which still provides migrants that chance. (Title 42 is the subject of separate legal challenges; a federal judge on Monday temporarily blocked ending that authority.)