Missouri AG 'optimistic' ahead of hearing challenging Biden reversal of 'Remain-in-Mexico' policy

Missouri Attorney General Eric Schmitt says he is optimistic ahead of a key hearing in a case challenging the Biden administration’s reversal of the Trump-era "Remain-in-Mexico" policy, as he warns that the move has fueled the crisis at the southern border.

Missouri, along with Texas, is suing the Biden administration for its reversal of the program formally known as the Migrant Protection Protocols (MPP), the Trump-era program that kept migrants in Mexico as they awaited their hearings.

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"We are hopeful for a favorable ruling because it is clear that the Biden administration didn’t consider anything relevant to how it was working or notice and comment, and obviously we have a crisis at the border now," Schmitt told Fox News in an interview Wednesday "Anyone who is paying attention knows we have a 21-year high in border crossings, drug traffickers, and human traffickers have been emboldened, and that affects not just Texas but states like Missouri."

The policy, set up in agreement with Mexico, saw tens of thousands of migrants kept in Mexico as they awaited their hearings, instead of being released into the U.S. Their asylum claims were processed in tent courts set up at border points.

Opponents, including President Biden, called the policy cruel as it put migrants in camps south of the border and at risk of violence. However, proponents said it was central in ending "catch-and-release" and dramatically cut the pull factors drawing migrants by not allowing migrants into the U.S.

Now, with an ongoing border crisis and increases in migrants (more than 188,000 in June), criminal illegal immigrants, and drugs like fentanyl, Republicans are blaming Biden’s ending of Trump-era policies like wall construction and MPP.

"It's because we have a porous border where people, if they come here seeking asylum – unlike under President Trump where Mexico was sort of the waiting room while they waited their hearing and due process – now they're in the United States, released into the interior and never seen again," Schmitt said. "It’s not sustainable, it’s a disaster."

The hearing on Thursday in a federal district court will hear both sides of the case, and the judge will rule whether or not the Biden administration violated the law.

The lawsuit says the surge at the border, encouraged by the ending of MPP, has "inflicted serious costs on Texas as organized crime and drug cartels prey on migrant communities and children through human trafficking, violence, extortion, sexual assault and exploitation." 

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Meanwhile, it says it has hurt Missouri’s fight against human trafficking, and that "irresponsible border security policies that invite and encourage human traffickers to exploit vulnerable border-crossing victims irreparably injure Missouri and other states."

From a legal standpoint, the case alleges that the administration violated the Administrative Procedure Act (APA) and that the move was unconstitutional.

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"Mostly when you do something like this, typically you have a notice and comment period, you will consider a number of factors to base your decision on, that isn't what they did at all," Schmitt said.

"From a procedural perspective, they violated the law and you don't get rewarded for that"

The case comes just days after a Texas judge ruled that the 2012 Deferred Action for Childhood Arrivals (DACA) program was illegal and the Obama administration had violated the APA in enacting it. The judge put a halt on new DACA approvals, although it does not affect existing recipients.

The case on Thursday seeks to re-implement the MPP process, and Schmitt says he believes they have a good chance of being successful.

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"I'm optimistic, I feel like we've got the facts and the law on our side and I'll take that any day of the week," he said.

He also believed it was important that states like Missouri, which aren't border states like Texas or Arizona, are part of these lawsuits as it demonstrates just how states that aren’t close to the border are directly affected by the ongoing crisis.

"Missouri has a robust interstate highway system, we have taken great pains in this office to fight human trafficking, raids in different cities, we work with law enforcement, and you see the surge in human trafficking that’s taking place at the border affect states like Missouri – and we have an obligation to hold the Biden administration’s feet to the fire on this."