By Andrew Chung

WASHINGTON, (Reuters) – The U.S. Supreme Court will consider Tuesday’s attempt by President Joe Biden to rescind a harsh immigration policy that was implemented under Donald Trump. This forced tens to thousands of migrants from Mexico to wait for U.S. asylum hearings.

Oral arguments are to be heard by the justices in the Biden administration appeal to a lower court decision that reinstated Trump’s “remain in Mexico” policy. This was after Republican-led Texas and Missouri sued for the continuation of the program. Biden, who changed a long-standing U.S. policy shortly after taking office in 2011, suspended the policy.

Trump’s government adopted this policy (formally called the “Migrant Protection Protocols”) in response to increased migration at the U.S./Mexico border in 2018. This policy prohibited certain non-Mexican migrants from entering the United States in order to be deported to Mexico.

This dispute revolves around how much discretion Biden’s Supreme Court (a conservative majority of 6-3) thinks Biden or his administration should have in changing immigration policy.

Biden’s administration appealed the court to say it has been “forced” to continue and reinstate a controversial strategy that puts migrants at risk, hurts relations with Mexico, and doesn’t deter illegal migration.

Also, Trump’s administration said the lower courts interfere with U.S. Presidents historically wide authority over foreign affairs. A principle the Supreme Court long supported including in Trump’s cases.

In the dispute is the meaning and application of U.S. Immigration Law 1996, which states that U.S. officials can “return certain immigrants to Mexican territory” in case of immigration proceeding. Biden’s Administration claimed the provision is discretionary. The lower court’s ruling means that each presidential administration has been in “open and systemic violations” of this law since its creation.

This provision had been used on a very limited basis by administrations before Trump took office. Officials have been following this practice for many decades, even though it is not a common law in the United States.

From the moment it was implemented in 2019, to the day Biden ended it, approximately 68,000 Mexicans fell within the scope of the “remain-in-Mexico” policy.

Biden’s colleagues Democrats and immigration supporters criticized Trump’s policy. They claimed that migrants stuck at Mexican border cities faced kidnappings, and other dangers.

Recently, the U.S. border with Mexico was visited by record numbers of immigrants. Republicans criticize Biden’s immigration policies, arguing that “remain in Mexico” policy deterred illegal migration.

Missouri and Texas both challenged the Biden Administration’s plan to repeal the policy.

A federal judge had reinstated the program. The Supreme Court rejected a Biden administration request for a blockade of that decision last August.

New Orleans’ 5th U.S. Circuit Court of Appeals ruled that, because it does not have sufficient capacity to hold all immigrants who do not qualify for admission pending a hearing in December, the government must keep “remain in Mexico”.