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Amy L. Howe, May 3, 2022
"Six days after hearing oral argument in the challenge to the Biden administration’s effort to unwind the “remain in Mexico” immigration policy, the Supreme Court on Monday called for more briefing. In a short order, the justices asked both sides in the dispute to weigh in on technical – but potentially dispositive – issues relating to the court’s power to hear the case.
At last week’s oral argument in Biden v. Texas, the main issues before the justices included whether the government’s efforts to end the policy, formally known as the Migrant Protection Protocols, were consistent with federal immigration law, and whether requiring the Biden administration to continue the policy would interfere with the executive branch’s powers over foreign policy and immigration. But some justices – including Justices Clarence Thomas and Samuel Alito – also questioned U.S. Solicitor General Elizabeth Prelogar about the administration’s argument, made in a footnote in its opening brief, that a provision of federal immigration law barred the lower courts from entering an injunction in the case. Prelogar offered to submit supplemental briefing on the question, and on Monday the court accepted that offer.
The justices directed the Biden administration and Texas and Missouri, the states challenging the decision to end the policy, to address three questions. The first is whether 8 U.S.C. § 1252(f)(1), the provision of federal immigration law at issue, limits the relief that federal courts can award. The second is whether, if Section 1252(f)(1) does impose limitations, those limitations can be forfeited if they are not raised. And the third question is whether the Supreme Court has the jurisdiction to consider the merits of the case.
The justices instructed both sides to move quickly, directing them to file initial briefs by Monday, May 9, with reply briefs to follow by Friday, May 13. The court’s decision in the case is expected by summer."