This week the Supreme Court will hear a case that could entrench the Trump administration’s “Remain in Mexico” policy, which forces people seeking asylum to await their court dates in dangerous conditions in Mexico. The Remain in Mexico Policy, misleadingly dubbed the “Migrant Protection Protocols” created a humanitarian disaster at the border and has been the subject of ACLU lawsuits since it was first implemented in 2019.

President Biden made a campaign promise to end Remain in Mexico, recognizing the grave harm it subjects people seeking asylum to. Biden followed through on his promise and terminated the policy. But Texas and Missouri sued, and a federal Texas district court judge ordered the federal government to restart the program.

The Biden administration has tried multiple times to end the policy, including by asking the U.S. Supreme Court to block the order on an emergency basis – a move the ACLU supported in an amicus brief – but the Court declined to do so. The Biden administration has been forced to resume the policy while litigation continues.

Biden v. Trump has now made its way up to the Supreme Court to be heard on the merits. Here is what’s at stake.

The lower court decision under review by the Supreme Court would effectively keep the Trump administration’s shameful Remain in Mexico policy in place indefinitely, even though the policy did not exist under multiple administrations (including the Trump Administration before 2019).

This decision is contrary to a fundamental principle of a democracy: A new administration, selected by the people, should be empowered to reject its predecessor’s policies and adopt those it believes are in the public interest. The government is, of course, constrained by statutes, including the requirement to provide reasoning for its policy decisions. But by upending the normal rules that govern agency decisions and unjustifiably locking in Trump’s policy, the lower court overstepped its role as a neutral enforcer of the rules.

The anti-democratic implications of that holding are deeply troubling, and the Supreme Court must reject it.

In ordering the Biden administration to resume the Remain in Mexico policy, the lower courts held that immigration law limits the federal government to only two options when people seek asylum at the border: detain them or forcibly return them to Mexico before their hearing. Since the Department of Homeland Security (DHS) lacks capacity to detain all people seeking asylum, the judge reasoned that the only choice would be to send them to Mexico while their cases proceed.

This is a patently false choice. Congress has stipulated that DHS has broad power to avoid unnecessarily detaining people and to release people to their networks of care while their immigration cases proceed. In fact, all presidential administrations have exercised broad discretion to release people rather than restricting DHS to two binary choices – including the Trump administration itself.

Most importantly, at stake is whether the U.S. will continue to be a country that allows people fleeing persecution to seek safety inside its borders. Remain in Mexico, and other related policies, like Title 42, which has shut down access to asylum at the southern border for over two years under the guise of public health, are attempts to dismantle longstanding U.S. asylum policy that uphold our commitment to international human rights norms.

During the two years the policy was in effect under Trump, Human Rights First documented over 1,540 reported cases of kidnappings, murder, torture, rape, and other forms of violence against asylum seekers returned to Mexico. U.S. and Mexican authorities have failed to establish adequate housing options or to provide access to medical care and work, leaving people vulnerable to transnational cartels who prey on migrants. Black and LGBTQ+ asylum seekers returned to Mexico have faced particularly severe risks.

If the Supreme Court prevents the Biden administration from ending Remain in Mexico, it will enshrine a new legacy for the United States – a legacy of turning its back on international commitments and sending people directly into harm’s way.

New Mexico’s 2022 legislative session revealed a troubling absence of the political will to pass meaningful public safety legislation in the Roundhouse. 

Some elected officials relied on false and harmful rhetoric when it came to addressing public safety. Legislative efforts to address crime in New Mexico this year fell far short of measures that decades of research show actually confront the root causes of crime in our state. 

New Mexico could be investing in programs to address substance abuse, provide job opportunities in historically underserved communities and make it easier for people trying to rebuild their lives after a criminal conviction to successfully re-enter society.

Legislators had a chance to do just that through measures that would match court fines and fees with an individual’s ability to pay to break the vicious cycle of poverty, debt and desperation that can lead to crime. Other legislation would’ve given people released from prison a chance to successfully and fully re-enter society, including by automatically restoring their right to vote.

Those bills, however, died from a lack of time and political will in the Roundhouse. 

Instead, our legislators reached for costly, antiquated and failed policies focused on throwing as many people as possible in jail for as long as possible. For example, an effort to roll back bail reform and impose pretrial detention would have risked holding innocent people in jail and have very little impact on public safety. That bill thankfully failed when it was confronted with facts and evidence. 

But not all harmful bills were stopped.

Legislators created new additions to the criminal code for actions largely already covered by existing laws, inflating our bloated criminal legal system. Likewise, harsher penalties won’t deter crime or help victims, and will instead only make rehabilitation and re-entry harder — at taxpayers’ expense. 

Evidence has shown that the harsh consequences of the criminal legal system drive economic insecurity and substance abuse, leading only to more crime and more destabilizing criminal legal consequences. If we are going to build truly safe communities, we cannot continue in this way. 

We deserve legislation that actually addresses the root causes of crime and works to make us and our families safer in the long term through creative and compassionate interventions.

With the nationwide increase in crime, New Mexicans deserve better than outdated ideas that we know won’t make us safer. And with the reality of limited resources, we cannot afford to keep throwing money at policies that will not solve the problem. 

We demand better from our legislators and our candidates. With the 2022 elections upon us, they must all resist the urge to play on fear and parrot lines supporting wasteful and harmful policies. 

New Mexicans need real, evidence-based solutions that build a safer, more equitable New Mexico for us all, and elected officials who have the courage to get us there. 

Our lives and futures depend on it. We cannot accept anything less.

This op-ed was originally published at SourceNM.