Supreme Court helping Trump undo one of Biden's most egregious migrant moves
Democrats are crying foul, saying Trump isn't following the law. But it was President Biden who broke the law when he allowed these migrants here in the first place.
While the Supreme Court's reprieve doesn't assure that the Court will ultimately rule in the administration's favor, it is good news for now. For these parole programs were some of the most egregious misdeeds of Alejandro Mayorkas, President Biden's Secretary of Homeland Security.
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US President Donald Trump walks to speak to journalists before boarding Air Force One from Morristown Municipal Airport in Morristown, New Jersey, May 25, 2025, after spending the weekend in New Jersey.
AFP via Getty Images
This program ushered into the United States on a red carpet over half a million aliens who, under our
nation's immigration laws, were flatly inadmissible.
In fact, the House of Representatives impeached Secretary Mayorkas for high crimes and misdemeanors in part because of these very programs: proclaiming that 'Mayorkas willfully exceeded his parole authority' by 'creat[ing], re-open[ing], or expand[ing] a series of categorical parole programs … which enabled hundreds of thousands of inadmissible aliens to enter the United States in violation of the laws enacted by Congress.'
When Congress granted the President the parole power in 1952, it was strictly for, as the House Judiciary Committee made clear, ONLY 'emergency cases,' such as 'an alien who requires immediate medical attention' or an inadmissible alien who needs to be here as 'a witness or for purposes of prosecution.'
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In 1996, Congress reacted to decades of abuses by administrations of both parties by tightening the language of the parole power in the Illegal Immigration Reform and Immigrant Responsibility Act. Among other changes, IIRIRA required that parole only be granted 'on a case-by-case basis.'
The 9th Circuit, yes even the activist West Coast 9th Circuit, concluded that '[i]n enacting IIRIRA,' Congress had 'expressed concern' that the Executive Branch 'had been using parole 'to circumvent Congressionally-established immigration policy'' and responded 'by narrowing the circumstances in which aliens could qualify' for parole.
The 5th Circuit concluded that DHS 'cannot … parole aliens en masse; that was the whole point of the 'case-by-case' requirement that Congress added in IIRIRA.'
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Haitian immigrant Rose Juliane, center, holds her daughter Rosie Sarah, as she speaks with Immigrant Family Services Institute Executive Director Geralde Gabeau, left, while waiting at the agency in the Mattapan neighborhood of Boston for transportation to a shelter, Thursday, Nov. 16, 2023.
AP
Here's the irony. While Biden ignored the 'case by case basis' requirement, and provided a mass parole, the lower-court judge who ruled against Trump, said that since parole can only be granted on a case-by-case basis, it likewise can only be terminated on a case-by-case basis.
So one law for Biden, another for Trump.
I believe it is clear that the Biden administration could not lawfully grant parole on a categorical basis to over half a million aliens in the first place. The 'case-by-case' requirement bars all mass parole programs (not specifically authorized by Congress). Biden's move was an affront to our constitutional separation of powers between the legislative and executive branches.
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If the Supreme Court does not once and for all put the kibosh on categorical parole programs, the next Biden, the next Mayorkas, could institute a program on steroids, rolling out the red carpet for pretty much any and every person around the world not already in the United States.
George Fishman is enior legal fellow at the Center for Immigration Studies.
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