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Will The Supreme Court Let Biden End Trump’s Asylum Policy? : The NPR Politics Podcast : NPR


UNIDENTIFIED STUDENTS: Hi. This is Miss Marvin’s (ph) first grade class in Denver, Colo. This podcast was recorded at…

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2:14 p.m. on April 20, 2022.

UNIDENTIFIED STUDENTS: Things may have changed by the time you hear it. OK. Here’s the show.


PARKS: Impressive.

NINA TOTENBERG, BYLINE: (Laughter) I want to hug them all.

PARKS: (Laughter) Virtual hug. Audio hug.

JOEL ROSE, BYLINE: How many takes do you think it took them to get that?

PARKS: (Laughter).

TOTENBERG: I think she was – the teacher was conducting. It had to be.

PARKS: Still half a day, at least…

TOTENBERG: (Laughter).

PARKS: …I feel like. Hey there. It’s the NPR POLITICS PODCAST. I’m Miles Parks. I cover voting.

TOTENBERG: I’m Nina Totenberg. I cover the courts.

PARKS: And next week, two substantial cases before the Supreme Court – the first concerns the so-called Remain in Mexico policy for people seeking asylum in the United States, and the second is about school prayer and religious freedom. We’re going to start now with the first one, this Remain in Mexico policy. And to talk through it, we brought in NPR’s Joel Rose, who covers immigration. Hey, Joel.

ROSE: Hey, Miles.

PARKS: So can you just explain what this policy, this Remain in Mexico policy, is?

ROSE: Yeah, it is officially known as the Migrant Protection Protocols, but more often referred to as Remain in Mexico. It was put in place back in 2019 when the Trump administration was facing an influx of migrants at the U.S.-Mexico border. And this policy forced some of those migrants to wait outside of the U.S. for their hearings in U.S. courts, almost 70,000 in all under the Trump administration. And immigrant advocates said that the policy put many of those migrants in danger in border towns and squalid migrant camps. President Biden, on the campaign trail, called the policy inhumane. His administration tried to end it, but the states of Texas and Missouri sued to block that from happening. And a judge in Texas, who was appointed by former President Trump, sided with the states, ordered the administration to reinstate the policy. And that is roughly where we are today. The Biden administration says it is implementing Remain in Mexico in good faith, although, you know, on a much smaller scale than what happened under Trump.

PARKS: And, Nina, can you talk through what the specific issue is before the court that we’re going be talking about next week?

TOTENBERG: Well, technically, the questions before the court focus on administrative law. And believe me, you don’t want to hear about that.


TOTENBERG: But at the heart of the case are various provisions of the federal immigration law, which I got to tell you, is a bit like a Russian nesting doll. You open it, and there’s another doll, then there’s another doll and another doll. In this case, Texas, joined by Missouri, maintains that the federal government must detain asylum-seekers, mainly from Central and South America, or send them back to Mexico where they’re supposed to wait, potentially for years, before their asylum hearings are complete. There’s a big problem with that. Congress has appropriated enough money for 30- to 40,000 beds at any one time. And at various times, every recent administration has seen as many as a million or more people cross the border. So no administration ever, not even the Trump administration, has detained more than a fraction of migrants. It would probably blow up the entire federal budget.

ROSE: And yet the judge in this case agreed with the argument that Texas and Missouri were making, that the Biden administration, you know, must return these migrants if it cannot detain them. Immigrant advocates say that would have been a very extreme position, you know, almost unthinkable just, like, five years ago.

TOTENBERG: Ultimately, there are a couple of things at work here. Top homeland security officials from past administrations, Republicans and Democrats, have weighed in here saying that not only are the lower court rulings not feasible to carry out, but they’re an invasion of the president’s right to determine foreign policy here with the government of Mexico. And in that sense, it will be interesting to see if this very conservative court will be as deferential to the Biden administration on immigration policy as it was to the Trump administration.

PARKS: So, Joel, what about the actual people who’ve been caught up in this? What do we know about the people who are waiting to hear whether they’re going to be granted asylum? What are those living conditions like?

ROSE: Well, immigrant advocates say, really, that these migrants were forced to live in squalid and dangerous conditions in border towns or in migrant camps near the border. Advocates documented more than 1,500 cases of kidnapping or rape or other violent attacks, and they argue that Remain in Mexico also prevented a lot of these migrants from having any meaningful access to counsel because, very often, it was impossible to find any U.S. lawyers who were willing to travel into Mexico to take on these cases. The upshot of all that is that a lot of migrants simply dropped their claims and didn’t even make it to immigration court. And, you know, the Trump administration’s critics would say that was exactly the point that, you know, to discourage migrants from following through on their asylum claims.

PARKS: The case is also the latest in something you’ve reported a lot on, which is that Texas has kind of brought a legal battle to the Biden administration on cases related to immigration. Can you talk a little bit more about that?

ROSE: Yeah, sure. Texas has filed or joined at least eight lawsuits against the Biden administration’s border and immigration policies and has brought most of them before judges appointed by former President Trump. And it’s had a lot of success so far with this Remain in Mexico case being, you know, sort of the prime example. You could argue that something similar happened under President Trump, where the ACLU and other advocacy groups challenged his immigration policies. And federal judges often did block the Trump administration as well, including, you know, in one case, by the way, about this very same Remain in Mexico policy. But there was a key difference, which was, in those cases, a lot of times a higher court would step in and side with the president and let the administration’s policies stand while the cases played out in court. That has not happened in the same way with these Texas cases, at least so far. And, you know, as Nina says, I think it’s, you know, kind of an open question whether the Supreme Court is going to give the same deference to the Biden administration that it has to previous ones.

PARKS: Basically, in practice, that the courts have been a bigger impediment to the policies of the Biden administration at this point related to immigration than they were to the Trump administration.

ROSE: Yeah, I think so far you’d have to say so.

PARKS: OK. Joel, thank you so much for your reporting.

ROSE: Yeah, you’re welcome.

PARKS: Time for a quick break – more in a second.

And we are back with NPR justice correspondent Carrie Johnson. Hi, Carrie.


PARKS: So the second case that the court is hearing next week that we’re going to talk through is regarding school prayer and religious freedom. Nina, can you talk through what the backstory on this case is?

TOTENBERG: Well, let’s call this the case of the praying football coach. Joseph Kennedy was one of a number of JV and varsity football coaches in Bremerton, Wash., when school administrators learned that he was praying on the field with his teams and in the locker room. And they told him to cut it out. He did for a brief time and forever in the locker room. But then he resumed, he says on his own. Here’s what he told me about why he resumed doing it on the center of the field, even when lots of people were there.

JOSEPH KENNEDY: I fought and defended the Constitution, and the thought of leaving the field of battle where the guys just played and having to go and hide my faith because it was uncomfortable to somebody – that’s just not America.

TOTENBERG: By the time of the big homecoming game, he had lawyers who maintained that he had a constitutional right to pray on the 50-yard line right at the end of the game and that students should be free to voluntarily join in. The coach, by then, had also engaged in something of a media blitz. And at the end of that big game, many in the bleachers stormed the field. Kennedy was surrounded by TV cameras and the crowds, and some players knelt to pray while a state representative placed his hand on Kennedy’s shoulder in support. As I like to say, no good or bad cause goes unlitigated (ph). Kennedy lost his case in the lower courts, but now the ball, as it were, is in the Supreme Court.

PARKS: Well, it does seem worth noting, Carrie, that the two parties here – there seems to be a divide on some of the kind of more basic facts of this case. Is that right?

JOHNSON: Yeah. When I was reading the court papers this morning, the lawyers for the football coach and the lawyers for the school district described the facts very differently. It kind of struck me as an unusual instance in the Supreme Court. Usually the facts sections are pretty basic, and they align. But in this case, there’s a debate about whether this man was praying privately or with lots of people around and how public the whole thing was, as we just heard Nina say. So it really struck me as being quite unusual in that respect from the get-go.

PARKS: So, Nina, is this the kind of case that the Supreme Court’s conservative majority is really going to be felt on?

TOTENBERG: Well, the court has grabbed these religious freedom cases very aggressively. And as Carrie just noted, this is the kind of case that normally, in my experience, the Supreme Court doesn’t like to take because there’s not really any real agreement on some of the facts. So I – you know, I think this is a big deal case, even though it’s messy. It may be so messy that they dodge it, but they didn’t take it to dodge it. And I don’t, you know, I’m curious what Carrie thinks. I don’t know whether this is a first step toward restoring prayer in public school classrooms or not. But it could, I guess.

JOHNSON: Yeah, one of the big questions in this case seems to be was this government speech related to this coach’s official duties in his job as a football coach or just a merely private act? And the way the court decides to handle that kind of question could impact what religious acts are allowed in public schools by what kind of people moving forward. One thing, Miles – it’s a good thing you’re hosting today. One thing that really struck me is the alignment of friend of the court briefs in this case. We have a number of big-name people who have filed amicus briefs in this case, including former Trump Education Secretary Betsy DeVos. But even more importantly, Miles, a whole bunch of football players, really famous ones.


TOTENBERG: On both sides.

JOHNSON: On both sides.

PARKS: Really?

JOHNSON: Like Steve Largent, the Hall of Famer…


JOHNSON: …Who also served in Congress from Oklahoma, and Kirk Cousins, who’s the quarterback in Minnesota, Nick Foles from the Bears – we’ve got a lot of football players. Many of them are siding with this coach, but not all of them.

PARKS: Now I’m listening. OK.

JOHNSON: (Laughter).

PARKS: Kirk Cousins, Nick Foles – I’m interested. So, I mean, do we have any sense – there has been so much over the last, you know, hundred or 50 years on what religious actions are OK when it comes to the public school system. Do we have any idea or any clue whether this court is going to be OK going against, you know, changing precedent?

TOTENBERG: Well, this is a court that has a lot of cases in front of it that potentially could reverse precedent. Obviously, abortion is the biggest one this term, but there one scheduled for next term. They don’t seem to be shy about it. There’s a 6 to 3 majority. They can lose a vote and still prevail. And some of the members of this court have been itching to do this, particularly on social issues, for a very long time, as well as business, labor, other things. And they aren’t going to wait around.

JOHNSON: You know, one thing that really strikes me, Nina, is that last term we talked so much about going almost all the way there, the court going almost all the way there and reversing a number of precedents. So even if they don’t start to take some of the bricks down in that wall between church and state in this case, they could certainly signal very strongly that they’re going to move in that direction, even if they don’t go all the way this time, huh?

TOTENBERG: I think that’s probably right. I mean, this court really isn’t worried about what the Supreme Court was worried about for decades, that is separating church and state. This court is much more interested in accommodating religion and the state and making sure that everybody has the right to exercise the free exercise of religion.

PARKS: All right. Well, we will leave it there for the day. We will be watching what happens in the Supreme Court next week. I’m Miles Parks. I cover voting.

TOTENBERG: I’m Nina Totenberg. I cover the Supreme Court.

JOHNSON: I’m Carrie Johnson. I cover the Justice Department.

PARKS: And thank you for listening to the NPR POLITICS PODCAST.


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