Last week, the U.S. Supreme Court ignored established asylum law and unconcealed racial motivation with a nonsensical ruling that the Biden administration’s Department of Homeland Security “violated” some made-up “law” that it could not precisely define in rescinding Donald Trump’s so-called Migrant “Protection” Protocols, the infamous “Remain in Mexico” asylum policy, which was essentially white nationalist Stephen Miller’s desire that migrants would be forced to “wait” for asylum hearings on the other side of the border, which made it easier to ignore them, and they would just go “home” after a few years of waiting in vain. Why lie about this? This unlawful policy was put in place because it is harder to ignore asylum requests when these people are waiting inside this country.
In the labyrinth of the U.S. court system, where different courts with different ideological make-ups can issue entirely contradictory decisions, the right-wing Fifth Circuit Court of Appeals upheld the Trump-appointed Texas judge who ruled in favor of the fearmongering of migrants being a “burden” on states, ignoring the fact that migrant workers—illegal or not—are here to work, and contribute far more to the economy that what they allegedly “take.” A New York Times story in 2020 noted that the average undocumented worker paid more in federal taxes on average than Trump had done in almost all of the previous 15 years looked at, ten of which he paid no federal taxes at all. It is a crime that the Biden administration has not provided the proof that the basis of right-wing complaints is a lie, continuing the hypocrisy that the U.S. continues to exploit the need for labor from the south of the border, legally or not, and pretend that it isn’t so.
The decision “forcing” the Biden administration to leave in place the policy is problematic on several fronts, including one thing the right always complains about—not just “legislating” from the bench or ignoring precedent, but conducting foreign policy from the bench. The Court decided to ignore established practice and decided that the judicial branch could illegally interfere in foreign policy matters, which includes asylum policy, which is the purview of the executive branch; there can be no more obvious display of partisan arrogance by the right-wing majority on the Court.
Not only that, but it ignored the fact that the MPP hasn’t even been in effect for more than a year, when the Trump administration used Title 42 as an excuse to ban all asylum requests, regardless of the health status of the asylum seeker. The irony of all of this is that the ACLU filed a lawsuit against the MPP and in February 2019 and it remained in limbo until the Supreme Court dismissed the complaint as “moot” when Biden took office. Yet the court now hypocritically changed course and have declared it “unmoot” on ideological whim. Thus the court order two weeks ago by the Trump-appointed judge in Texas whose backdated “interpretation” of the 1996 immigration law (another example of how Bill Clinton betrayed progressive principles) as meaning that people from Latin America did not have the same asylum rights as those who cross the ocean, was allowed as the thin reed that the Supreme Court employed to rule that the Biden administration had to make a “good faith” effort to continue Trump’s illegal asylum policy.
The Court also made the absurd claim that the administration had not “adequately” explained why it was ending the Trump policy as a reason to leave it in place. It has already been noted that the Trump policy was, as enunciated by an unapologetic Miller, clearly motivated by white nationalism and racism, and that should have been sufficient reason to end the MPP on principle. But in its ruling, the Court didn’t even explain why it thought that the Biden administration’s justification was “insufficient.”
Technically, the Department of Homeland Security (which had taken control of immigration policy from the Immigration and Naturalization Service, turning illegal immigration from a civil into a “criminal” penalty) could restate its justification for rescinding the Trump policy, but why does it need to do so at all if it was an unlawful act out pure racist whim? It is not the business of the courts to rule on foreign policy matters, and the Supreme Court was way out of line on this one. This is clearly an early example of just how far to right this court has gone, and just more reason why electing Trump in 2016 was such a grave mistake for this country in the first place.
But the Supreme Court’s—or any Trumpist court’s—mistake extends well beyond that. The upshot of the “Remain in Mexico” policy is that it is counterproductive. Not only is it implied that seeking asylum is a “crime,” but those who abide by the “law” find that there is no “percentage” in it for them—that is to say, the “percentage” of even receiving an asylum hearing is closer to zero than “maybe.” This only makes illegal crossings the better “option” for them. I have already wrote about how up until the 1965 immigration act, there was no actual law preventing border crossings in either direction, it was just that those who did cross into this country had to have “papers” proving that they were being hired by an employer in the States; there was no actual “quota” on the number of migrants allowed in this country. This meant that there was less reason to stay in the country indefinitely, especially if there was no work; migrants could always come back when there was work. But Hispanic migrants proved to be too convenient scapegoats for white nationalists on the right, and “populists” on the left, and this is what motivated the change in immigration law.
For now, the Supreme Court expects the Biden administration to make a “good faith effort” to abide by a policy it ostensibly opposes. Unfortunately for the Court, it has no say in Mexico’s foreign policy decisions, which of course is the reason why the courts should butt-out of areas that do not concern them. The stupidity of the Court’s right-wing is that the Mexican government—which has been maintaining the camps for asylum-seekers with the help of NGOs—can look at this decision and say that since these people are not going anywhere any time soon, it can no longer afford to help maintain them or allow them a "safe" place to reside in.
And that is exactly what is happening now, since the U.S. is not providing funds to maintain the camps that Mexico has been allowing to exist as a favor to the U.S. The Mexican government and over-stretched local communities are not obligated to maintain these camps at the whim of the U.S.; it is perfectly within its rights to release all of these people on their own “recognizance”—which means either returning to their home countries, or finding a place to cross illegally. If the U.S. did offer to help pay the cost to maintain the camps, that would be an incentive to expedite asylum cases, so we can’t expect that to happen. And so the upshot is that the Court has put American foreign policy in regard to immigration in the hands of the Mexico government, foolishly or stupidly.
Meanwhile, what has the Biden
administration been doing on asylum requests? AZ Central reported that U.S. border officials have “since February
admitted a little more than 13,000 asylum seekers stuck in ‘Remain in Mexico,’”
about half those eligible, and less than one-in-five of those still waiting in
camps in Mexico. After the Supreme Court decision, DHS seemingly too easily
suspended “processing at ports of entry of individuals who were previously
enrolled in MPP.” 50,000 eligible
migrants cannot have their cases heard, and 3,500 migrants who are now
registered have their entry processing stopped. Far from being "protected," having to stay in limbo longer means that the threat from organized criminal gangs only adds to the misery.
This on top of the fact that asylum seekers must jump through almost impossible hoops without access to an American attorney willing to cross the border to help them. One ACLU advocate, Judy Rabinowitz, expressed surprise at the Biden administration’s actions: “There’s nothing in the district court injunction or in the Supreme Court’s decision not to stay it that says anything about these people and what should happen to them…in fact the injunction and the decisions about the injunction acknowledge that the administration and DHS still have the discretion to decide individual cases” regardless of the “Remain in Mexico” policy.
The Biden administration is also continuing to use Title 42 as an excuse to prevent asylum seekers from crossing the border, paranoid about the far-right myth-making about immigrants as “disease carriers.” The manufactured “crisis” at the border—and there is always a “crisis” at the border if it needs to be for partisan political purposes—always betrays the lack of simple human decency on this side of the border. Do we really need to rehash again America’s responsibility for two centuries of meddling in the affairs of Mexico and Central America, politically and socially, and the latter's economic exploitation—especially in the “banana republic” period when after getting whatever they could out of a country--would, unlike China, destroy whatever infrastructure they built so that the natives could not use them after they had been exploited in virtual slave conditions?
Then there was the destructive influence of American foreign policy during the 1980s in which liberal social movements were deliberately undermined in favor of right-wing murder regimes, like that in El Salvador,
or the “war” on cartels that simply moved the center of the drug trade from Colombia to Mexico, or the deportation of U.S.-bred gangs like the MS 13 to terrorize people? And the U.S. threatening to withhold miserly “assistance” to combat these problems unless they (again) kowtow to American demands?
Trump’s claim that “Remain in Mexico” stemmed “irregular” crossings was patently absurd; not only did it make it more difficult to do it the “lawful” way, it promoted illegal crossing. Let’s be clear about this: the 70,000 asylum seekers who had been waiting in some cases for two years or more for their “turn” for a hearing represent a very small percentage of the number of migrants who come to the border. They have been “promised” that if they “follow the law,” they will be treated as the law requires. That did not happen under Trump at the direction of Miller (who wanted to end all asylum requests), and the Biden administration has been loath to allow more than a trickle to even begin processing their claims.
And now the Biden administration is using the Supreme Court decision as an excuse to stop processing even those requests in the advanced stages. And people have the nerve to wonder what is so wrong with this country’s immigration system—one that kept illegal crossings relatively “manageable” for over a century. Why do anything “legally” if doing it the “legal” way is closed off just because people don’t like the way you “look”?
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