Why is the Supreme Court rejecting executive authority over

On Tuesday, the Supreme Court issued a brief order denying an application for a stay of a lower court’s ruling that President Joe BidenJoe BidenUS tells Americans to leave Kabul airport ‘immediately,’ citing ‘credible’ threat Britain, France to propose Kabul safe zone for people trying to flee Afghanistan Pollsters confront tough survey landscape after 2020 flubs MORE must adhere to the Trump administration’s so-called “Migrant Protection Protocols” (MPP) requiring asylum seekers to wait in Mexico pending a hearing.

Numerous media outlets have mistakenly characterized this order as a clear ruling that Biden must revive former President TrumpDonald TrumpPollsters confront tough survey landscape after 2020 flubs The Memo: Will DeSantis’s star fall as Florida COVID numbers rise? Legal experts welcome sanctions of pro-Trump lawyers, say more needed MORE’s MPP program, notwithstanding Biden’s executive order reconsidering it and the Department of Homeland Security’s (DHS) subsequent decision to terminate the policy. But this frame is inaccurate. All the court did was refuse to temporarily lift the lower court’s injunction forcing Biden to reinvigorate the MPP pending full briefing and argument in the Court of Appeals for the Fifth Circuit, which is scheduled for November. 

Still, coming from a panel of conservative justices whose track record under Trump showed strong support for broad presidential powers, Judge Alito’s unsigned order is a stunning rebuke of executive authority over immigration. The three progressives on the court — Justices Breyer, Sotomayor and Kagan — would have intervened to back Biden’s authority to dictate the policy in the interim.

Applicants for admission at the U.S. border are processed through either expedited removal proceedings or regular removal proceedings, and it’s up to immigration officers to make a threshold decision as to whether a particular non-citizen is eligible for the expedited route. In the Immigration and Naturalization Act (INA), Congress gave DHS authority to return some undocumented migrants (called “aliens” in the statute) to “a foreign territory contiguous to the United States” on an expedited basis under narrow circumstances, such as fraud, misrepresentation or a lack of proper documentation. Migrants who are not eligible for expedited removal are put in regular removal proceedings, which involve hearings before an immigration judge on an individual’s susceptibility to deportation. 

Prior to 2019 — when Trump’s DHS issued the MPP — immigration officers processing asylum seekers who didn’t qualify for expedited removal had two options: detain them in the United States or place them on parole within the United States pending their hearings. Under the MPP, Trump replaced the parole option with a new one: sending the applicants back to Mexico to wait until an immigration judge resolves their asylum claims, which can take a long time.

Trump’s MPP policy was…