INTRODUCTION
The United States Supreme Court’s decision to review the controversial “Remain in Mexico” policy—officially known as the Migrant Protection Protocols (MPP)—marks a critical juncture in American immigration law and executive authority. Introduced in January 2019 under the Trump Era Immigration Policy, the MPP mandated that certain noncitizens seeking asylum at the southern border be returned to Mexico while their claims were adjudicated in U.S. immigration courts. Though ostensibly justified as a procedural streamlining mechanism and deterrent against fraudulent asylum claims, the policy drew immediate and sustained criticism for what many viewed as a stark departure from long-standing humanitarian principles embedded in U.S. and international law.
The Supreme Court’s agreement to weigh in on the MPP—after several lower court battles and executive-level attempts at repeal—raises urgent legal and constitutional questions. At the heart of the case is the balance of power between the executive and judiciary, the interpretation of the Immigration and Nationality Act (INA), and the legal bounds of U.S. obligations under international conventions, such as the 1951 Refugee Convention and its 1967 Protocol.
“The Remain in Mexico policy represents a significant shift in U.S. asylum procedures, raising profound questions about our commitment to international human rights obligations and the rule of law,” observed Professor Linda Chavez, a political scientist and immigration policy expert at the University of Southern California.
While the Biden administration sought to terminate the policy in 2021, it encountered legal setbacks that reflected procedural scrutiny rather than substantive approval or disapproval of the policy’s humanitarian impacts. Notably, federal courts—including the Northern District of Texas—determined that the administration’s effort to rescind the MPP was inadequate under the Administrative Procedure Act (APA), reviving the policy and igniting a national debate on the limits of executive discretion in immigration enforcement.
This Supreme Court case also arrives during a politically sensitive time, as immigration continues to dominate public discourse and partisan agendas. For conservatives, the MPP has come to symbolize lawful deterrence and sovereign control over immigration processes. For progressives and human rights advocates, the policy represents systemic cruelty and a dehumanizing barrier to legal refuge.
The case therefore epitomizes the legal and societal tensions between procedural legitimacy and ethical governance. Whether the Court affirms the policy or deems it unlawful, the decision will significantly influence U.S. immigration law, potentially setting a precedent for future executive-branch policies that touch upon national security, humanitarian responsibility, and the scope of administrative power.
As the justices prepare to hear oral arguments, the nation watches closely. The outcome will not only determine the future of the MPP but may also recalibrate the legal scaffolding that supports or constrains presidential authority in shaping immigration policy.
LEGAL AND HISTORICAL BACKGROUND
The MPP was implemented under the authority of Section 235(b)(2)(C) of the Immigration and Nationality Act (INA), which permits the return of certain noncitizens to contiguous territories pending removal proceedings. Historically, this provision was seldom used. The Trump administration’s application of this statute marked a significant departure from previous practices.
Legal challenges to the MPP have centered on arguments that the policy violates both U.S. law and international obligations. Critics assert that returning asylum seekers to Mexico exposes them to undue harm and denies them meaningful access to legal representation.
“The MPP effectively denies asylum seekers their right to due process and subjects them to dangerous conditions, contravening both domestic and international legal standards.” — Professor Harold Koh, Yale Law School
In 2020, the Ninth Circuit Court of Appeals ruled that the MPP likely violated the INA and the Administrative Procedure Act (APA). However, the Supreme Court stayed this decision, allowing the policy to remain in effect pending further review.
CASE STATUS AND LEGAL PROCEEDINGS
As of spring 2025, the U.S. Supreme Court has formally agreed to hear arguments in the legal battle over the Migrant Protection Protocols (MPP), after years of administrative action and counter-litigation that have left the program in legal limbo. The heart of the litigation now before the Court concerns two intertwined legal issues: first, whether the Department of Homeland Security (DHS) acted lawfully in attempting to rescind the MPP, and second, whether the statutory framework under the Immigration and Nationality Act (INA) permits, requires, or prohibits a program like MPP altogether.
When President Joe Biden assumed office in January 2021, one of his early immigration-related actions was to suspend new enrollments in the MPP. In June 2021, DHS Secretary Alejandro Mayorkas issued a memorandum formally terminating the program, arguing that it failed to achieve its intended goals, imposed unjustifiable human costs, and strained diplomatic relations with Mexico. However, that termination memo was swiftly challenged by Texas and Missouri, which sued the federal government in the U.S. District Court for the Northern District of Texas.
The plaintiffs argued that the rescission of the policy violated the Administrative Procedure Act (APA), asserting that the Biden administration had failed to properly consider the potential consequences of ending the program and had provided insufficient reasoning. The district court agreed, ruling in Texas v. Biden (2021) that the administration had not adequately justified its decision under APA standards. U.S. District Judge Matthew Kacsmaryk issued a nationwide injunction requiring the administration to reinstate the policy “in good faith.”
In response, DHS attempted to cure the alleged procedural defects by issuing a second memorandum in October 2021. That new memo included a detailed justification for the program’s termination, citing humanitarian concerns, operational inefficiencies, and U.S. foreign policy interests. Yet the litigation persisted, and appellate courts—including the Fifth Circuit Court of Appeals—continued to uphold the district court’s rulings, viewing the new memo as insufficient.
In 2022, the Supreme Court ruled in Biden v. Texas that the October memo constituted a valid termination of the MPP from a procedural standpoint, temporarily lifting the injunction. However, subsequent lower court rulings reopened the door to additional legal challenges on the merits, including whether the INA mandates continued implementation of the MPP when detention resources are insufficient.
The Supreme Court’s current review centers on whether Section 235(b)(2)(C) of the INA requires DHS to continue returning asylum seekers to Mexico if the agency lacks the capacity to detain them in the U.S. The conservative Fifth Circuit has previously interpreted the statute to mean that DHS must use MPP when detention is unavailable—a view now under scrutiny.
Amicus briefs have poured in from a wide array of stakeholders. Civil rights organizations such as the ACLU argue that the policy creates inhumane conditions for vulnerable migrants and violates U.S. obligations under the 1967 Refugee Protocol. Conversely, amici from conservative think tanks and states contend that MPP is a lawful and necessary tool for managing border security and preserving the integrity of the asylum process.
“The outcome of this case could radically redefine the scope of executive discretion in immigration enforcement,” said Ilya Shapiro, director of constitutional studies at the Manhattan Institute. “It may also clarify the judiciary’s role in reviewing administrative policy reversals.”
Oral arguments are expected during the Court’s next term, with a decision likely in mid-2025. Given the Court’s current 6–3 conservative majority, observers across the political spectrum are bracing for a ruling that could not only determine the fate of MPP but also recalibrate the doctrinal standards governing how agencies can adopt and rescind controversial enforcement programs.
VIEWPOINTS AND COMMENTARY
Progressive / Liberal Perspectives
Progressive lawmakers, civil rights organizations, and constitutional scholars have uniformly condemned the Migrant Protection Protocols as a profound violation of due process, international humanitarian law, and American values. Their critique begins with the lived experiences of asylum seekers—many of whom were forced to reside for months or even years in dangerous and under-resourced Mexican border towns such as Matamoros and Ciudad Juárez. Human rights reports documented kidnappings, assaults, and widespread abuse among those waiting under MPP conditions.
“We are systematically denying people fleeing persecution the right to a fair asylum hearing and subjecting them to life-threatening conditions—this is morally and legally indefensible,” said Lee Gelernt, Deputy Director of the ACLU Immigrants’ Rights Project.
Progressives argue that MPP subverts the U.S. asylum process by making it logistically impossible for migrants to access legal counsel and appear at immigration hearings. Without stable housing, access to transportation, or means of communication, many miss court dates and are then unjustly denied relief for non-appearance. Legal clinics have documented a dramatic drop in representation rates for individuals under MPP—sometimes as low as 1%—in contrast to the roughly 30% for those allowed to remain in the U.S.
Furthermore, liberal constitutional scholars stress that the MPP regime may violate the Due Process Clause of the Fifth Amendment, which applies to “persons” rather than “citizens” and has been historically interpreted to offer baseline protections to all individuals under U.S. jurisdiction.
“Procedural due process does not vanish at the border,” said Professor Lucas Guttentag of Stanford Law School, “and certainly cannot be suspended by administrative fiat.”
Many also cite obligations under the 1951 Refugee Convention and its 1967 Protocol, to which the United States is a party, as requiring that asylum seekers not be returned to unsafe third countries without a thorough individualized assessment—standards the MPP arguably fails to meet. Indeed, the United Nations High Commissioner for Refugees (UNHCR) has expressed concern that the policy constitutes constructive refoulement, a violation of Article 33 of the Convention.
On the policy side, progressives view the MPP as part of a broader attempt to externalize border control—a strategy reminiscent of Australia’s offshore detention model, which has also faced widespread international condemnation.
“This is not just a legal case. It’s a test of America’s humanitarian soul,” said Congresswoman Pramila Jayapal (D-WA), chair of the Congressional Progressive Caucus. “We should be building a system that respects the dignity of people fleeing violence—not one that punishes them for it.”
In their view, the MPP is not just an immigration enforcement tool but a moral failure that risks turning the U.S. into a fortress, rather than a refuge for the persecuted.
Conservative / Right-Leaning Perspectives
On the conservative end of the spectrum, the Migrant Protection Protocols are viewed as a lawful and prudent policy tool designed to reassert control over a beleaguered immigration system. For many Republicans and legal originalists, the policy embodies a straightforward application of Section 235(b)(2)(C) of the Immigration and Nationality Act, which authorizes DHS to return asylum seekers to contiguous territories. The statutory authority, in their view, is clear and does not require courts to impose humanitarian or diplomatic overlays that are absent from the text.
“Congress gave DHS the authority to manage border flows, and the courts have no business second-guessing how the executive uses that authority—especially when it protects national security,” argued Josh Blackman, constitutional law professor at South Texas College of Law.
The policy, conservatives contend, served as a powerful deterrent against meritless asylum claims, many of which they argue were driven by economic motivations rather than credible fear of persecution. By requiring asylum seekers to remain in Mexico, MPP disrupted the perceived “catch and release” cycle—where migrants enter the U.S., are released pending hearings, and sometimes fail to appear.
“The MPP closed a gaping loophole that smugglers exploited to flood the border with fraudulent claims,” said Tom Homan, former acting director of Immigration and Customs Enforcement (ICE). “It sent a message: if you don’t qualify for asylum, you won’t get a free pass into the country.”
From a procedural standpoint, conservative legal scholars argue that the Biden administration’s attempt to rescind the program without thorough cost-benefit analysis, as required under the Administrative Procedure Act (APA), reflects a broader pattern of executive overreach. In their view, the administration sought to dismantle a legally sound policy for political reasons without due process or rational policy justification.
Security-based rationales also feature prominently in conservative defenses of the MPP. They point to the increasing number of border encounters, concerns about human trafficking, and the strain on immigration courts as justification for policies that reduce unnecessary inflows.
“Border security is national security,” said Senator Josh Hawley (R-MO). “And if we don’t enforce our own laws, we cede control to the cartels and chaos.”
Think tanks such as the Heritage Foundation and the Center for Immigration Studies have issued white papers supporting MPP’s effectiveness in curbing migration surges and relieving pressure on U.S. infrastructure. They often argue that the humanitarian harms alleged by critics are overstated or stem from the failure of foreign governments to provide safe conditions—not the design of U.S. law.
“No sovereign nation has a duty to admit every migrant who seeks entry,” said Kris Kobach, former Kansas Secretary of State and conservative legal commentator. “MPP doesn’t violate human rights—it enforces national rights.”
For conservatives, the legal question is less about ethics and more about textualism: does the law permit this policy, and did the administration follow proper procedures in seeking to end it? If the answer to either is no, then the courts must intervene—not to set policy, but to enforce statutory boundaries.
COMPARABLE OR HISTORICAL CASES
DHS v. Regents of the University of California (2020)
In this case, the Supreme Court reviewed the Trump administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program, which had allowed certain undocumented immigrants who arrived as children to remain in the U.S. without fear of deportation. The Court ruled that the administration’s decision to end DACA was “arbitrary and capricious” under the Administrative Procedure Act (APA) because it failed to consider critical aspects of the policy, such as the reliance interests of DACA recipients.
This precedent is profoundly relevant to the MPP case. When the Biden administration sought to terminate MPP in June 2021, it faced similar judicial scrutiny under the APA. The district court held that DHS had failed to provide an adequate explanation for its decision and had not considered the policy’s purported benefits. Like Regents, the Court must now determine whether the rescission process adhered to the APA’s procedural requirements.
“Regents reinforced the idea that executive policy reversals must be deliberate, reasoned, and accompanied by a serious assessment of consequences,” explained Professor Shoba Sivaprasad Wadhia of Penn State Law. “That standard will now be applied to MPP’s rescission.”
INS v. Cardoza-Fonseca (1987)
This case clarified the legal threshold for granting asylum under U.S. law. The Supreme Court ruled that asylum applicants must demonstrate a “well-founded fear of persecution,” a standard less demanding than the “clear probability” of persecution required for withholding of removal. This decision emphasized that immigration judges must apply legal standards consistent with humanitarian protections embedded in the Refugee Act of 1980, which aligned U.S. law with the 1967 Refugee Protocol.
Cardoza-Fonseca is often cited by immigration advocates to argue that U.S. law must be interpreted in ways that safeguard the rights of asylum seekers. Critics of MPP claim that the policy effectively undermines this standard by placing vulnerable individuals in dangerous conditions that deter them from pursuing valid asylum claims.
“The legacy of Cardoza-Fonseca is the principle that asylum is not a favor but a legal right grounded in international norms,” said Professor Deborah Anker of Harvard Law School. “MPP places that principle at risk.”
Zadvydas v. Davis (2001)
In Zadvydas, the Court considered whether the federal government could indefinitely detain noncitizens with final removal orders who could not be deported. The Court ruled that such indefinite detention would raise serious constitutional questions and held that the INA must be interpreted to limit detention to a reasonable period.
The case established the principle that immigration enforcement, though rooted in plenary executive power, is still subject to constitutional constraints. While Zadvydas dealt with detention rather than expulsion, its relevance to MPP lies in the assertion that executive power in immigration matters is not absolute and must yield to due process.
“Even when dealing with noncitizens, the Constitution imposes outer bounds on what government actors can do,” observed Professor Hiroshi Motomura of UCLA School of Law.
POLICY IMPLICATIONS AND FORECASTING
The Supreme Court’s ruling on the Migrant Protection Protocols (MPP) will carry profound implications for the structure of immigration law, the authority of the executive branch, the scope of judicial oversight, and the humanitarian practices of the United States. Depending on the outcome, the decision may either constrain or embolden future administrations in crafting and terminating immigration policies, redefine the procedural rigor required under the Administrative Procedure Act (APA), and shift the legal baseline for how asylum seekers are processed at the U.S. border.
From an institutional standpoint, the Court’s ruling could recalibrate the relationship between the executive and judiciary in the context of immigration. If the Court affirms the authority of the executive branch to unilaterally implement and maintain policies like the MPP, it would signal a wider latitude for future administrations—regardless of political orientation—to act with minimal judicial interference, provided the statutory language appears permissive. Conversely, if the Court rules that the executive must meet stringent procedural standards and uphold humanitarian considerations, the judiciary would be reaffirmed as a check on potentially draconian immigration enforcement measures.
“This case is not just about the border—it’s about the durability of the administrative state and the public’s trust in its fairness,” noted Professor Cristina Rodríguez of Yale Law School. “Whether we lean toward centralized discretion or institutional accountability will shape how democratic our immigration system truly is.”
From a policy angle, a decision upholding the MPP could set a precedent for a range of border enforcement mechanisms that prioritize deterrence over due process. It would legitimize the practice of externalizing asylum processing—shifting the burden of humanitarian screening onto neighboring countries, often with far fewer resources and protections. This may encourage future policymakers to pursue similar strategies, such as third-country asylum agreements or offshore processing facilities, as tools of immigration control.
Critics argue that such policies risk eroding the moral authority of the United States and compromising its commitments under international refugee conventions. A ruling favorable to the MPP may undermine the credibility of the U.S. when advocating for human rights abroad, especially in regions where it demands stronger asylum protections from other nations.
“If the U.S. cannot honor its own asylum commitments, it forfeits its ability to lead by example on the global stage,” warned Eleanor Acer, Senior Director for Refugee Protection at Human Rights First.
On the domestic front, the decision will reverberate in Congress, potentially fueling renewed legislative efforts to clarify or reform the INA. If the Court rules narrowly—focusing only on the APA without addressing the underlying legality of the MPP—lawmakers may be spurred to codify clearer standards for asylum processing and administrative reversals. Such efforts, however, would face partisan headwinds, as immigration remains one of the most divisive issues in American politics.
Think tanks across the spectrum have already begun issuing forecasts. The Brookings Institution emphasizes the risk of institutional erosion if APA standards are weakened, while the Heritage Foundation warns that an overly restrictive ruling could paralyze future administrations in times of crisis.
“Striking the right balance between flexibility and accountability is key to preserving both the rule of law and national security,” said Andrew Selee, President of the Migration Policy Institute.
In the long term, the Court’s decision will likely influence how future immigration policies are crafted, contested, and upheld. It may shape the parameters of what it means to offer refuge in the 21st century, at a time when global displacement, climate migration, and geopolitical instability are on the rise.
CONCLUSION
The Supreme Court’s pending decision on the Migrant Protection Protocols (MPP) case encapsulates the deep constitutional, legal, and ethical dilemmas that characterize America’s immigration debate in the 21st century. At its core, the case is not solely about whether a single policy should stand or fall—it is a referendum on the structure of administrative governance, the contours of executive discretion, and the boundaries of humanitarian obligation in a democratic society.
Throughout the course of litigation, the MPP has come to symbolize divergent visions of national identity, justice, and sovereignty. On one side are those who see the policy as a necessary measure to restore border order and discourage frivolous asylum claims. On the other are those who regard it as a mechanism of exclusion that contravenes America’s legal commitments and moral responsibilities to protect the persecuted.
What makes this case constitutionally significant is not just the statutory ambiguity of Section 235(b)(2)(C) of the Immigration and Nationality Act, but the broader question of how courts should mediate the tension between policy flexibility and procedural accountability. If the Supreme Court rules in favor of the Biden administration’s rescission of the MPP, it will reaffirm the principle that executive actions must comply not only with the letter of the law but also with the procedural rigor required by the Administrative Procedure Act (APA).
Conversely, if the Court upholds the policy or finds that the administration’s termination failed to meet statutory obligations, the ruling could signal a contraction in judicial willingness to constrain executive latitude—especially on immigration issues where courts have historically deferred to the political branches under the “plenary power doctrine.” That doctrine, though long-standing, is increasingly contested in an era where administrative decisions can carry life-or-death consequences for vulnerable populations.
“The MPP case challenges the nation to decide whether law can be a shield for the persecuted or a sword of exclusion,” wrote Professor Erwin Chemerinsky, Dean of UC Berkeley School of Law. “The answer will shape not just immigration policy, but our national conscience.”
The decision’s downstream implications will also affect civil liberties, bureaucratic legitimacy, and public trust. A ruling perceived as enabling executive overreach could weaken confidence in the rule of law, while a ruling that strikes down the policy without clear statutory interpretation could invite accusations of judicial activism. Either way, the outcome will redefine the jurisprudence of administrative law for years to come.
For policymakers, advocates, and citizens, the case invites difficult but necessary introspection: What kind of nation should the United States be when confronted with vulnerable migrants at its borders? How should it balance the imperatives of sovereignty and sanctuary? And who—if anyone—should be above or beyond procedural scrutiny when lives are on the line?
The case also highlights the urgent need for legislative clarity. As long as immigration law remains a patchwork of overlapping statutes, outdated categories, and delegated discretion, courts will be left to interpret ambiguity—often under intense political pressure. Comprehensive immigration reform, long stalled in Congress, may be the only way to resolve these systemic tensions with democratic legitimacy.
“In every great legal question lies a deeper moral one,” noted Judge Learned Hand. “Liberty lies in the hearts of men and women.”
The ultimate legal answer to the MPP may rest in precedent and statute. But the deeper policy question remains: how should a just society welcome the stranger?
For Further Reading:
- “Supreme Court to Decide Legality of ‘Remain in Mexico’ Policy” – The New York Times
https://www.nytimes.com/2025/04/22/us/supreme-court-remain-in-mexico.html - “The Human Cost of the ‘Remain in Mexico’ Policy” – Human Rights Watch
https://www.hrw.org/news/2025/04/23/human-cost-remain-mexico-policy - “Analyzing the Legal Challenges to the MPP” – The Federalist Society
https://fedsoc.org/commentary/fedsoc-blog/analyzing-the-legal-challenges-to-the-mpp - “Immigration Policy and Executive Authority” – Brookings Institution
https://www.brookings.edu/research/immigration-policy-and-executive-authority - “The Role of the Judiciary in Immigration Law” – Cato Institute
https://www.cato.org/publications/commentary/role-judiciary-immigration-law