December 9, 2023

PHOENIX — The Biden administration is free to scrap the Trump-era “remain in Mexico” policy, the U.S. Supreme Court ruled Thursday.

Chief Justice John Roberts, writing for the majority, said the section of federal law about returning those who seek asylum to the nearest country gives the administration discretion whether to follow it. And the key, he said, is that the statute uses the word “may.”

“This court has repeatedly observed that the word ‘may’ clearly constitutes discretion,” Roberts wrote for himself and four other justices. “The use of the word ‘may’ in (the statute) thus makes clear that continguous-territory return is a tool that the Secretary (of Homeland Security) has the authority but not the duty to use.”

And Roberts said that every administration has interpreted the law requiring returning migrants to Mexico as “purely discretionary,” even in times when there has been insufficient funding to detain them.

The ruling is a defeat for Arizona Attorney General Mark Brnovich who had been among state prosecutors who sought to void the Biden administration action. He argued that allowing the president to permit those seeking asylum to remain in the United States would incentivize people to come here illegally.

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This isn’t the first time a federal court has rejected Brnovich’s efforts to force the Biden administration to follow Trump-era policies.

Earlier this year a federal judge tossed out a bid by Brnovich to use environmental laws to immediately force the administration to resume construction of the border wall. In that case the judge said arguments by Brnovich linking border wall construction and illegal immigration are both legally and factually flawed.

Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on Twitter at @azcapmedia or email 

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