Biden v. Texas
The Supreme Court ruled that the Biden administration had the legal authority to end the 'Remain in Mexico' program, which had required migrants to wait in Mexico while their U.S. immigration cases proceeded, and that the government's second, more detailed cancellation order was a valid agency action subject to court review.
The ruling lifts the lower court orders that had forced the administration to keep running the program, but sends the case back to the lower courts to decide whether the administration's detailed explanation for ending the policy satisfies federal administrative-law requirements for reasoned decision-making.
How it got here: Texas and Missouri sued in federal district court in Texas; the District Court vacated the program cancellation and imposed a nationwide injunction; the Fifth Circuit affirmed; the Supreme Court agreed to hear the case on an expedited basis.
The Case in Depth
What happened
Beginning in January 2019, the Trump administration ran a program called "Remain in Mexico" (officially the Migrant Protection Protocols, or MPP) that sent certain migrants arriving from Mexico back across the border to wait there while their U.S. immigration removal cases were decided. After President Biden took office, the administration suspended the program on his first day and officially cancelled it in June 2021. Texas and Missouri sued, arguing that federal immigration law effectively required the program because the government lacked enough detention space for all arriving migrants.
The question before the Court
Could the Biden administration legally end the "Remain in Mexico" immigration program, and did its second, more detailed attempt to cancel the program count as a valid agency decision that courts must review?
The Court's answer
Yes to both questions — the administration had the legal authority to end the program, and its October 2021 memoranda counted as a valid new agency decision.
On the first question, the Court ruled that the "Remain in Mexico" program was always optional, not required. The relevant statute says the Secretary of Homeland Security "may return" migrants to Mexico — and the word "may" means exactly that: a choice, not a duty. Even if the government is separately failing to comply with a legal requirement to detain certain migrants, that failure cannot transform a discretionary option into a legal obligation. Texas and Missouri argued that the statute's structure demanded the program as a mandatory fallback, but the Court refused to read an unspoken mandate into language Congress chose to make permissive.
On the second question, the Court held that after a district court vacated the first cancellation as inadequately explained and sent the matter back to the agency, the Secretary's new, more detailed October 2021 memoranda constituted a fresh agency action — not merely a post hoc defense of the first attempt. Those memoranda are therefore separately reviewable, and the case returns to the District Court to decide whether they satisfy the administrative law requirement that agency decisions be reasonable and well-explained.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The decision removes the court-imposed requirement that the federal government keep returning migrants to Mexico under the Remain in Mexico program. However, the Biden administration still must persuade a federal trial court that its detailed October 2021 explanation for ending the program was reasonable and well-supported — so whether the program stays cancelled depends on that next round of litigation.
What changes now
The case is sent back to the federal district court in Texas, which must now decide in the first instance whether the Biden administration's detailed October 2021 explanation for ending the Remain in Mexico program satisfies the APA's requirement that agency decisions be reasonable and reasonably explained. The nationwide injunction forcing the administration to keep running the program is no longer legally valid. How that lower-court review comes out will determine whether the program's cancellation ultimately stands.
What this does not decide
The Court does not decide whether the October 2021 memoranda actually satisfy the APA's arbitrary-and-capricious standard — that question goes back to the District Court. The Court also expressly declines to decide whether the government's widespread release of migrants who cannot be detained violates the mandatory detention statute, or whether the administration's use of the parole authority is lawful.
Concurrences and dissents
Concurrence — Justice Kavanaugh
Justice Kavanaugh joined the majority in full but wrote separately to clarify his view of how the immigration statutes work together. He emphasized that when DHS lacks detention space, both parole and return-to-Mexico are legally permissible options, and different administrations may choose differently — that is ordinary administrative discretion. He also flagged that the critical remaining question — whether the October 2021 decision satisfies the APA's reasonableness standard — is left for the lower court on remand, and that courts must be highly deferential to the President's foreign-policy judgments when conducting that review.
Dissent — Justice Alito
“This practice violates the clear terms of the law, but the Court looks the other way.”Justice Alito's accusation that the majority permits the mass release of migrants in defiance of Congress's plain statutory command.
Justice Alito argued that the INA gives DHS only three lawful options for migrants who cannot be detained: detain them, return them to Mexico, or grant individual parole. When detention is impossible and mass parole is being abused, the return-to-Mexico option becomes effectively required — not because the word 'may' changes meaning, but because the statute must be read as a coherent whole. The majority ignores the mandatory detention command and reads the return authority in isolation, creating an unlawful fourth option: simply releasing migrants into the country. Alito also objected to the Court reaching difficult jurisdictional questions that were barely briefed.
Dissent — Justice Barrett
Justice Barrett agreed with the majority's merits conclusions but argued the Court should not have reached them. Two weeks earlier, the Court had issued a major ruling on the immigration-court injunction statute (§ 1252(f)(1)) in Aleman Gonzalez, and the lower courts had not yet had a chance to reconsider their jurisdiction in light of it. Rather than break new jurisdictional ground on a compressed, barely adversarial briefing schedule, the Court should have vacated and remanded for the lower courts to address those antecedent questions first. Thomas, Alito, and Gorsuch joined all but the opening sentence (in which Barrett agreed with the merits).
How the Court got there
The legal reasoning, step by step
- The Court first addressed whether it could hear the case at all. Federal law (8 U.S.C. § 1252(f)(1)) bars lower courts from ordering the government to enforce or stop enforcing certain immigration statutes on a class-wide basis, and the District Court's injunction crossed that line. But the Court held that this is a limit on the type of relief a court can order — not a complete elimination of the court's power to hear the underlying legal dispute. Because the lower court still had authority to adjudicate the claim for declaratory relief, this Court had appellate jurisdiction to reach the merits.
- The central merits question turned on the word 'may' in the contiguous-territory return provision (8 U.S.C. § 1225(b)(2)(C)), which says the Secretary 'may return' migrants arriving from Mexico to that country while their cases proceed. The Court held that 'may' unambiguously grants discretion — not a duty. Every presidential administration since the provision was enacted in 1996 treated it as optional, and the legislative history confirmed it was designed merely to authorize a practice that had been legally questioned, not to mandate it.
- Texas and Missouri argued that a separate INA provision — section 1225(b)(2)(A), which commands that inadmissible migrants 'shall be detained' — changes the analysis: when the government cannot meet its detention obligations, they argued, the otherwise-discretionary return-to-Mexico authority becomes effectively mandatory as a substitute. The Court rejected this structural inference. Congress used the word 'may' deliberately, and a court cannot transform a discretionary grant of power into a mandate through an unstated inference that contradicts the statutory text.
- The Court also reasoned that forcing the government to return migrants to Mexico against its will would significantly intrude on the President's ability to manage foreign relations with Mexico — a country whose cooperation is legally required for the program to function. Congress is unlikely to have imposed such a constraint on diplomatic relations without much clearer statutory language.
- On the second question, the Court applied the framework from DHS v. Regents of Univ. of Cal. (a 2020 ruling on how agencies may act after a court sends a matter back to them): an agency facing a vacated decision can either elaborate on its original reasoning or take a genuinely fresh action with new reasons. Here, the Secretary expressly superseded the first memorandum and offered substantially new reasoning. The October 29 memoranda therefore marked the 'consummation' of a new decision-making process and determined new obligations — the test for 'final agency action' under the APA — making them independently reviewable rather than an impermissible after-the-fact justification for the earlier decision.
Doctrinal impact
Cases affected by this decision
Reaffirms Garland v. Aleman Gonzalez (596 U.S. ___)
Applied to confirm that the District Court's class-wide injunction was barred by 8 U.S.C. § 1252(f)(1).
Reaffirms Department of Homeland Security v. Regents of Univ. of Cal. (591 U.S. ___)
Applied its two-options framework to hold that the agency's October 2021 memoranda were a valid fresh agency action, not a post hoc rationalization.
Reaffirms Bennett v. Spear (520 U.S. 154)
Applied its two-part test for final agency action to hold the October 2021 memoranda were independently reviewable under the APA.