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The Supreme Court was right to reinstate Trump’s ‘Remain in Mexico’ policy

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25.08.2021

Reasonable people can differ on whether the Trump administration’s Migrant Protection Protocols program, better known as the “Remain in Mexico” policy, is a good way to handle asylum claims at the border. The Supreme Court’s order on Tuesday effectively overturning the Biden administration’s efforts to date to do away with the protocols, however, was not based on a policy judgment; instead, it was a proper application of the relevant law and a defense of democratic governance.

The Constitution clearly states that only Congress shall make laws. Since the Remain in Mexico policy determines the legal rights of people attempting to enter the United States, it has the effect of a law. That creates a constitutional conundrum: How can the executive branch enact such a law when the Constitution clearly grants that power to Congress?

The answer to that is the result of more than a century of constitutional jurisprudence and statute. The jurisprudential answer is that the Supreme Court has allowed Congress to delegate its lawmaking powers to the executive branch or to independent agencies so long as Congress provides an intelligible........

© Washington Post


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