Texas and the Biden administration are often at legal odds with each other. But one dispute in briefs filed with the U.S. Supreme Court last week takes the cake – or shall we say, it takes the broccoli and ketchup.
The case is Biden v. Texas, and at issue is the Trump-era immigration policy known as MPP, or Migrant Protection Protocols. Under the “Remain in Mexico” part of the policy, certain noncitizens arriving at the southwest border were returned to Mexico during their immigration proceedings.
In adopting the policy, the Trump administration invoked parts of the Immigration and Nationality Act. The statute provides that the secretary of Homeland Security “may” return certain noncitizens to Mexico and Canada during the pendency of their immigration proceedings, something that the Trump administration wanted to do. A different clause has been interpreted as requiring that aliens “must” be detained in the United States during the immigration proceedings.
On the Biden administration’s first day, the Trump policy was suspended pending review. On June 1, 2021, the policy was terminated. Texas and Missouri sued, and in a lengthy ruling, U.S. District Judge Matthew Kacsmaryk in Texas’s Northern District ruled against the Biden administration, asserting that the statute requires that the migrant-protocols policy continue. The Fifth Circuit U.S. Court of Appeals agreed in a December decision.
The Biden administration petitioned the Supreme Court on December 29, asserting among other arguments that the wording of the statute invoked by Texas clearly states the DHS may return applicants to Mexico or Canada, but it does not have to. U.S. Solicitor General Elizabeth Prelogar said in the government’s brief that the high court has “consistently emphasized that the word ‘may’ clearly connotes discretion.”
This is where the broccoli and ketchup come in. In his counter January 28 brief on behalf of Texas and Missouri, Texas Solicitor General Judd Stone II asserted that the “may” or discretionary option to keep applicants from having to return to Mexico turned into a “must” because the DHS “lacks the resources” to detain applicants in the United States and declines to use its discretion to send applicants back to Mexico.
“Under the circumstances, contiguous-territory-return is the only way DHS can avoid violating its detention obligations,” Stone wrote. “When one has both a duty and an optional method of fulfilling the duty, and under the circumstances the option is the only way to fulfill that duty, the option becomes obligatory.”
Stone sought to explain that complex statutory interpretation with a rather unusual hypothetical that is also complicated:
“Suppose a parent says to her child: ‘You must eat all your broccoli. If you wish, you may eat it with ketchup.’ And suppose the child responds: ‘It is impossible to eat my broccoli without ketchup because broccoli makes me choke and gag, and I cannot swallow it. I could get it down with ketchup. But you have offered me discretion on whether to eat it with ketchup. I exercise that discretion and decline to use ketchup. Therefore, I will eat no broccoli.’ This response would undoubtedly be met with peals of laughter, and a renewed instruction to eat the broccoli, with or without ketchup.”
It would be a rare child who would speak that way. But Stone apparently used the anecdote to show that the Biden administration, metaphorically speaking, ditched all of the mandatory broccoli by using a trick to exercise its option not to eat it with ketchup. As a result, Stone says the Biden administration is “unlawfully releasing tens of thousands of aliens per month into the United States, while steadfastly refusing to exercise its option to return a single alien to Mexico during removal proceedings.”
In a February 2 reply brief, U.S. Solicitor Elizabeth Prelogar responded:
“Respondents’ hypothetical about broccoli and ketchup illustrates their error. They posit a parent who tells a child that he ‘must’ eat broccoli and ‘may’ add ketchup. As respondents [Texas and Missouri] recognize, those rules make ketchup optional: They justify an “instruction to eat the broccoli, with or without ketchup,” but not an instruction to eat ketchup. So too here: Respondents’ reading of [the statute] even if it were correct, could conceivably justify at most a requirement that DHS detain more people (eat the broccoli), but it cannot support an injunction compelling DHS to use its discretionary return authority (eat ketchup).”
She elaborated by asserting that “If Congress had wanted to mandate contiguous-territory return whenever DHS lacks adequate detention capacity—notwithstanding the enormous foreign-policy consequences of such a mandate […]—then Congress would not have used the discretionary term ‘may.’”
The last time broccoli made a cameo appearance in a Supreme Court case was in March 2012, when the late Justice Antonin Scalia made a comment during oral argument in the Obamacare case Department of Health and Human Services v. Florida. He questioned whether everyone should have health insurance, adding, “Everybody has to buy food sooner or later. So, you define the market as food; therefore, everybody’s in the market; therefore, you can make people buy broccoli.” Since 2000, at least, ketchup has not adorned any opinion or oral-argument transcript.
Justices may be talking broccoli when they consider Biden v. Texas at the high court’s February 18 private conference. In her brief, Prelogar urged the court to take up the case quickly in April, the final month this term when the court hears oral arguments.
National Broccoli Day, it should be noted, is April 4.