Shortly after the Supreme Court ruled in favor of the Biden administration in a case regarding the Remain in Mexico policy, Texas Attorney General Ken Paxton joined Charlie Kirk to talk about the ruling.
Paxton told Kirk he was "disappointed" that "we didn’t get a 5-4 win instead of a 5-4, basically remand back to the District Court."
"It’s not over, because they did remand the second memo that rescinded — where the Biden administration rescinded Remain in Mexico, they remanded that back to the court," Paxton added, noting that "we’re basically starting over.:
"And you can look at the dissent from Alito and it kind of gives some signposts as to the direction that we probably need to go."
Explaining the details of the case to the audience, Paxton said that the Supreme Court is sending the case back to the District Court "because when we got our first injunction in District Court against the Remain in Mexico program, the Biden administration came out with a second memo — they’d issued their first memo, getting rid of Remain in Mexico, well we won and got an injunction. They changed the memo while we’re in the middle of litigation."
"So basically, the first rescission went up, and the court struck that, I mean, sided with the Biden administration on that, but they said there’s still questions to be answered as to whether the Biden administration followed all the right procedures in changing the second memo," Paxton continued.
Paxton continued on to say that the ruling was "disappointing," noting the contention over the phrases "shall" and "may" within the case and existing law.
"There’s a 'shall' and a 'may.' And the 'shall' was — the 'shall' related, in our opinion, to 'shall detain these people or send them back to their country of origin prior toothier hearing on asylum,'" said Paxton. "So what’s happening now is the Biden administration inviting all these people to come, they’re claiming asylum, it’s a loophole.
"And the loophole was shut by the Trump administration by using this federal law, and the Biden administration said 'no, we want them to come, we want them to stay here as long as they’re gonna wait for their asylum hearing. And then most of them disappear."
Kirk noted that the process resembled a sort of "de facto amnesty," adding, "And that's an important point is that outside of the hyper-technical, very narrow reading of this decision, isn't it about the essence and the implications of it?"
Using the Second Amendment as an example, Kirk said that the founding fathers didn’t mean for just those in militias to have guns, but rather anyone.
"We have to look at what was the founders intent when they wrote that, being of course loyal to the textualist nature, but not so narrow, where we just take it word by word by word," Kirk said, noting that the ramifications of the law have been "extremely severe" in Texas.
"Yeah, so I have a hard time understanding why Congress would pull legislation that says they either have to be detained or setback if they didn't mean that," said Paxton.
"The argument that the Biden administration made, it was, they couldn't have totally meant it because we got too many people here, and we don't have — they haven't given us enough resources to detain all these people. So we can't even follow the law they've given us.
But my argument back would be, wait a minute, you're the one that invited all these people to come and told them to hurry up. And now we have millions of people on the border and you say you don't have enough facilities," Paxton continued. "A good part of that’s your fault."
Speaking to the argument that’s been made in relation to the case, Kirk said, "and just to play out the logic, it's like saying, okay, we have federal murder laws. Most murders go unsolved in Chicago, because we don't have enough people to go investigate them. Does that somehow invalidate the law? I mean, what kind of silly incredibly dumb legal argument is that?'"
After Kirk read out a portion of Justice Samuel Alito’s, which states, "When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided? Congress has provided a clear answer to that question, and the answer is no," Paxton recalled the loophole being used by migrants coming into the US.
"Because what Trump did by enforcing that law, is he disincentivized people from using this huge loophole that the immigration lawyers in America had discovered work, where you just show, up turn yourself into border agents," said Paxton.
"You don't run from border agents, you actually try to find them," he continued. "And then they bring you in because you've claimed asylum, and it was a loophole that was being expanded every day as people understood, 'Hey, we just claim asylum and we're in' and so the Trump administration used this law to stop it, and the Biden administration said, no, we like the loophole. We want these people coming. We want to get as many of them here as fast as possible. And so they basically started telling people, you're invited come, claim asylum. You're perfectly welcome to do it. And we'll just let you go."
The 2022 fiscal year is quickly approaching another record year in terms of southwest border encounters. In the 2021 fiscal year, that number was 1,734,686 people. In 2022 so far, with four months remaining, that number is 1,536,899, with the last three months setting records, according to US Customs and Border Patrol data.
