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On Tuesday, the Supreme Court delved into a pivotal case concerning the government’s authority to turn back asylum seekers attempting to reach U.S. ports of entry. This controversial practice, known as “metering,” began during the Obama administration and is something President Trump has expressed interest in potentially reinstating.
“Metering” involves border officials denying entry to migrants before they physically cross the border into the United States. Although this practice was discontinued several years ago, the current legal debate centers around its possible revival.
The crux of the Supreme Court case hinges on the interpretation of the phrase “arrives in.” According to federal law, noncitizens who “arrive in” the U.S. are entitled to apply for asylum. However, under the metering policy, migrants who are turned back remain on the Mexican side of the border, thereby, according to the government, forfeiting their opportunity to apply for asylum.
During the oral arguments, some conservative justices appeared sympathetic to the government’s stance, grappling with the challenge of determining where the line should be drawn if it doesn’t require an actual crossing of the border.
As the battle came to a head at oral arguments Tuesday, several conservative justices appeared open to that position. Some appeared to struggle to find where else to draw the line, if someone doesn’t actually need to cross the true border.
“So anybody at the otters’ edge of the Rio Grande on the Mexican side has ‘arrived in’?” Justice Neil Gorsuch asked the attorney who represents the challengers.
“No, the border is halfway through the water,” responded the attorney, Kelsi Corkran.
“Okay,” Gorsuch replied. “All right, so they’ve got one step short of halfway through, they’ve arrived. But somebody who’s on the water’s edge has not arrived?”
Chief Justice John Roberts questioned if it should reach someone way back in line at a port of entry.
“I gather you think it makes a difference, whether there’s a door or a turnstile, you have to be there,” Roberts said. “If you’re at the end of a long line, you’re not there. You haven’t arrived at the turnstile.”
As various suggestions got floated — Gorsuch at one point even asked if someone who climbed to the top of the border wall would have a better claim than someone at the bottom — the court’s most senior liberal justice appeared dissatisfied at times with the discussion.
“The other side says a foot. I don’t know why the foot is magical,” said Justice Sonia Sotomayor. “I could put my hand through or my nose through. I don’t know. Why does a foot count as opposed to a piece of your body count?”
A decision in the case is expected by the end of June.
Metering was first implemented in 2016 during the final months of the Obama administration after the San Ysidro port in southern California experienced an increase in Haitian migrant arrivals.
The Department of Homeland Security formalized the policy during Trump’s first term and applied it to all ports along the southern border. Then-President Biden’s administration rescinded the guidance in 2021.
The Supreme Court challenge was launched years ago by immigrant rights group Al Otro Lado and 13 asylum seekers.
Corkran, the Supreme Court director at Georgetown Law’s Institute for Constitutional Advocacy & Protection, represents them as they argue the turnback policy violates federal law.
“For decades, port officers followed the statutory procedures designated by Congress for inspecting and processing arriving asylum seekers,” Corkran told the justices on Tuesday.
“It was not until 2016 that the government asserted for the first time that it can wholly avoid these mandatory duties simply by blocking asylum seekers just as they are about to step over the port threshold.”
Their challenge garnered support from roughly two-dozen Democratic members of Congress, the U.S. Conference of Catholic Bishops and Amnesty International USA.
As Tuesday’s arguments got underway, faith leaders and immigrant rights advocates who are backing them gathered outside the courthouse for a faith vigil.
The administration’s defense of metering got support from Republican Sens. Ted Cruz (Texas), Tedd Budd (N.C.), Mike Lee (Utah), Kevin Cramer (N.D.) and Josh Hawley (Mo.) as well as Rep. Darrell Issa (Calif.).
“We already know what happens without metering because the Biden Administration stopped using it,” they wrote in court filings. “The border was a chaotic humanitarian disaster, with mass overcrowding, and thousands of children went missing.”
Although the case does not concern one of Trump’s second-term immigration policies, the administration wants the right to bring back metering.
“The administration would like to be able to reinstate metering if and when border conditions justify,” Assistant to the Solicitor General Vivek Suri told the court on Tuesday.
“I cannot predict in advance what border conditions will look like or what specific policy responses the administration would take in response to that,” Suri added.
It sparked suggestions from Ketanji Brown Jackson, one of the court’s liberal justices, that the Supreme Court shouldn’t actually reach the merits of the legal battle. She instead repeatedly proposed tossing the case as moot.
“I don’t understand what we are doing other than advising the government in sort of the abstract as to whether or not this kind of thing is lawful,” Jackson said. “We don’t have an actual policy.”
It didn’t appear to gain traction with at least some of her colleagues.
“Mr. Suri,” Justice Amy Coney Barrett later clarified, “when I asked if the administration intended to reinstate the metering policy, I didn’t intend to suggest that it was formally moot.”
Barrett and others pointed to the lower court’s order granting relief to migrants impacted by the previous metering policy. It is still in effect.
As the future of metering remains an open question , the Supreme Court battle comes amid the administration’s broader immigration crackdown that has been inundating the courts.
The Trump administration has made other changes restricting asylum and has clawed back other programs that provide foreign nationals with deportation protections in the U.S. for humanitarian reasons.
Last week, the justices agreed to take up the Trump administration’s efforts to curtail the Temporary Protected Status (TPS) program and whether judges have authority to block the moves. Oral arguments are expected the last week of April.