The Supreme Court and the Migrant Protection Protocols, Part 1

The Fate of the MPP may come down to two vegetables, broccoli and ketchup

By George Fishman on May 12, 2022
Barbara bush

The image at right is a C-Span screen shot of First Lady Barbara Bush accepting a delivery of broccoli from the United Fresh Fruit and Vegetable Association in an attempt to make amends after President George H.W. Bush had declared:

I do not like broccoli. And I haven’t liked it since I was a little kid and my mother made me eat it. And I’m president of the United States, and I’m not going to eat any more broccoli!

A decade earlier during the Reagan administration, a huge controversy arose following the Department of Agriculture’s issuance of a federal school lunch program regulation defining ketchup as a vegetable. Well, not exactly:

James Johnson, an aide to [Reagan’s Agriculture Secretary John] Block, later defended the regulations: "There was a great misunderstanding in the land as to how these regulations are viewed. I think it would be a mistake to say that ketchup per se was classified as a vegetable. ... Ketchup in combination with other things was classified as a vegetable." What other things? he was asked. "French fries or hamburgers," he replied.

Sounds like an alchemist transmuting lead into gold! Not even Republican Sen. John Heinz, whose family owns the H.J. Heinz Co., was convinced:

Ketchup is a condiment. This is one of the most ridiculous regulations I ever heard of, and I suppose I need not add that I know something about ketchup and relish — or did at one time.

OK, but what does any of this have to do with the Migrant Protection Protocols (MPP)? As I have written:

[The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 contained] a provision that laid the statutory foundation for the ... MPP. ... The provision — at § 235(b)(2)(C) of the Immigration and Nationality Act (INA) — provides that DHS may return aliens to the country from which they entered the U.S. (Mexico or Canada) pending their removal proceedings if they crossed the northern or southern border illegally or showed up at land border ports of entry and were not clearly and beyond a doubt entitled to be admitted.


[The MPP] was wildly successful, in a very real sense being the closest thing we had to a silver bullet to bring the border under control (prior to the arrival of the Covid-19 pandemic, at which point DHS carried out its obligations to protect the public health under Title 42 by expelling aliens outside of the strictures of the INA). However, until Covid, the MPP was truly the MVP of border enforcement. It can be so again after our present public health emergency passes if the Biden administration (or a future one) allows it to be.


The Biden administration has tried to terminate the MPP on its own on a number of occasions. But [in December], the Fifth Circuit Court of Appeals denied the administration’s request that it overturn [a district court’s] vacateur of DHS’s termination decision and [its] order that DHS implement the MPP in good faith [in a lawsuit filed by the States of Texas and Missouri].

The government filed a petition for a writ of certiorari with the Supreme Court, asking the Court to resolve a number of issues, including “[w]hether [§ 235 of the INA] requires DHS to continue implementing MPP”. The Supreme Court granted the writ, accepting the case.

One of the bases for the Fifth Circuit’s decision was its determination “that DHS has violated ... Congress’s statutory commands in §[235]”. What is § 235? Well, its subsection (b)(2)(A) provides that:

Subject to subparagraph[] ... (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that [the] alien ... is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding.

As the Fifth Circuit explains:

§[235](b)(2)(A) ... applies to “the case of an alien who is an applicant for admission.” MPP concerns only that same group of aliens. ... And § [235](b)(2)(A) uses mandatory language (“the alien shall be detained”) to require DHS to detain aliens pending removal proceedings. The Supreme Court has given this provision the same gloss. See Jennings[ v. Rodriguez], 138 S. Ct. [830 (2018)] at 837 (“Read most naturally, §§[235](b)(1) and (b)(2) ... mandate detention of applicants for admission until certain proceedings have concluded.”). ... Section [235](b)(2)(C) then explains a permissible alternative to otherwise-mandatory detention. ... (C) provides that DHS “may” return them to a contiguous foreign territory instead of detaining them. This allowance is, of course, discretionary. But it does not undo the obvious fact that (A) is otherwise mandatory. So (A) sets a default (mandatory detention), and (C) explicitly sets out an allowed alternative (contiguous-territory return pending removal proceedings). ... Section [212](d)(5) allows humanitarian parole as another alternative, but that parole can be exercised only within narrow parameters (case-by-case and with a public interest justification). ... The Government recognizes that the[se] ... statutory alternatives [plus one other that I will not discuss here] ... are exhaustive. Congress gave DHS no [other] choice. The [MPP] Termination Decision nonetheless purported to arrogate to DHS a[nother] alternative that Congress did not provide. By so deciding, DHS contradicted §[235]’s statutory scheme. As the district court found, DHS lacks the resources to detain every alien seeking admission to the United States. ... That means DHS can’t detain everyone §[235](b)(2)(A) says it “shall” detain. So it’s left with a class of people: aliens it apprehended at the border but whom it lacks the capacity to detain. By terminating MPP, DHS has refused to return that class to contiguous territories, as permitted by §[235](b)(2)(C). The Government’s position thus boils down to this: We can’t do one thing Congress commanded (detain under §[235](b)(2)(A)), and we don’t want to do one thing Congress allowed (return under §[235](b)(2)(C)).

As the court also puts it:

[Section 235](b)(2)(A) is mandatory, and (C) offers a permissible alternative to the otherwise-mandatory obligation in (A). DHS is violating (A)’s mandate, refusing to avail itself of (C)’s authorized alternative, and then complaining that it doesn’t like its options.

You may now be asking, “Are we there yet? Where is the broccoli?” Well, in the middle of its 117-page decision, the Fifth Circuit notes that “[w]e’ve arrived at page 63 of this opinion, but we’re still not ready for the merits”, and at page 88 exclaims triumphantly that “[a]t long last, we’ve reached the merits.” Well, at long last, we’ve reached the broccoli! In one of the briefs that Texas filed with the Supreme Court, it argues that:

Suppose a parent says to her child: “You must eat all your broccoli. If you wish, you may eat it with ketchup.” And suppose the child responds: “It is impossible to eat my broccoli without ketchup because broccoli makes me choke and gag, and I cannot swallow it. I could get it down with ketchup. But you have offered me discretion on whether to eat it with ketchup. I exercise that discretion and decline to use ketchup. Therefore, I will eat no broccoli.” This response would undoubtedly be met with peals of laughter, and a renewed instruction to eat the broccoli, with or without ketchup.

The Government’s position here is no different. [T]he Secretary must detain arriving applicants for admission pending removal proceedings, unless the alien is clearly and undoubtedly entitled to admission. ... [I]n the alternative, the Secretary may return such an alien to contiguous territory pending removal proceedings. The Government lacks capacity to detain the vast majority of arriving applicants for admission. ... And the Government declines to exercise its discretion to return arriving aliens to Mexico. Thus, the Government contends, it may continue to systematically violate its detention obligations ... by unlawfully releasing tens of thousands of aliens per month into the United States, while steadfastly refusing to exercise its option to return a single alien to Mexico during removal proceedings.

In this manner, the Government confines itself in a “box” of “can’ts-and-don’t-wants.” ... It takes a statutory regime that explicitly directs that almost no arriving aliens shall be released in the United States pending removal proceedings, and transforms it into a regime where almost all arriving aliens are released into the United States pending removal proceedings.

When one has both (1) an obligation to do something, and (2) a discretionary option that offers a potential means to fulfill the obligation; but (3) under the circumstances, the discretionary obligation is the only method of fulfilling the obligation; then the discretionary option becomes obligatory.

The Government responds by stoutly insisting that “may” means “may” in §[235](b)(2)(C), and thus it can “never” be ordered to employ its contiguous-territory return authority. ... But to make this argument, the Government must divorce subparagraph (C) from subparagraph (A) of the same statutory paragraph, and “focus[] on §[235](b)(2)(C) in isolation.” ... This is unreasonable. Not only are (b)(2)(A) and (b)(2)(C) contained in the same statutory paragraph ... but they explicitly cross-reference each other. ... (“Subject to subparagraphs (B) and (C). ... In the case of an alien described in subparagraph (A)…”). Through these cross-references, both subparagraphs establish beyond doubt that the contiguous-territory-return authority in (b)(2)(C) constitutes an alternative to the mandatory-detention regime of (b)(2)(A). ... In the Fifth Circuit’s words, (b)(2)(C) is a “statutory safety valve to address that [detention capacity] problem.”

Thus, according to the States:

The Fifth Circuit correctly held that the federal government may not terminate MPP when doing so will cause it to systemically violate its mandatory-detention obligations under section [235](b). ... No one disputes that there are times when detention demands may outstrip capacity. And no one disagrees that the government ordinarily enjoys discretion in exercising its contiguous-return authority. But DHS must faithfully comply with Congress’s mandatory-detention obligations — which means it cannot refuse to use a lawful tool to carry out that obligation merely because it prefers not to do so.

The government responded in one of its briefs:

[The States] echo ... the court of appeals’ conclusion that DHS “must” use MPP. That assertion founders on the statutory text providing that the Secretary “may return” certain noncitizens to Mexico pending removal proceedings. ... [The States] insist ... that this concededly “discretionary option” becomes “obligatory” whenever DHS lacks the resources to satisfy a purported detention mandate in Section [235](b)(2)(A). That is ... mistaken. [E]ven if Section [235](b)(2)(A) imposed such an inflexible detention requirement, it could not transform Section [235](b)(2)(C) from a discretionary provision into a mandatory one. [The States] observe ... that subparagraphs (b)(2)(A) and (b)(2)(C) are part of the same paragraph and cross-reference each other. But that shows only that Congress gave the Secretary, as an alternative to detention, an elective return authority. If Congress had wanted to mandate contiguous-territory return whenever DHS lacks adequate detention capacity ... then Congress would not have used the discretionary term “may.”

[The States] posit . . . a parent who tells a child that he “must” eat broccoli and “may” add ketchup. As [Texas and Missouri] recognize, those rules make ketchup optional: They justify an “instruction to eat the broccoli, with or without ketchup,” ... but not an instruction to eat ketchup. So too here: [the States’] reading [of § 235] ... even if it were correct, could conceivably justify at most a requirement that DHS detain more people (eat the broccoli), but it cannot support an injunction compelling DHS to use its discretionary return authority (eat ketchup).


If, as the court supposed, Congress had wanted to order the Executive Branch to implement contiguous territory return whenever detention capacity is lacking, there would be no plausible justification for Congress’s unelaborated use of the discretionary term “may.”

The States retort:

It may be the case that if DHS could demonstrate that it was willing and able to detain all aliens that it is required to detain, a court could only obligate DHS to comply with section [235]. But [the government] did not claim they were so willing or attempt to show they were so able. ... In fact, as the district court found, the record demonstrates the opposite — that DHS will systemically violate section [235] if it terminates MPP. ... What a counterfactual DHS might do with greater detention capacity and a willingness to use it cannot rescue [it].

How will the Supreme Court decide? We will further analyze the issues in Part 2, forthcoming. Will the United Fresh Fruit and Vegetable Association be filing an amicus brief, or at least delivering a truckload of broccoli to the Supreme Court? I don’t know, but in the meantime, eat your vegetables!