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The U.S. Supreme Court considered Tuesday whether the Trump administration can revive a restrictive asylum practice called “metering,” which immigration authorities have used to limit access to asylum claims at the U.S.-Mexico border. The arguments took place as the court weighs a dispute over how to read a key phrase in the Immigration and Nationality Act, and as the policy is not currently being used.
During the hearing, some conservative justices appeared receptive to the Justice Department’s request to undo a lower-court ruling that barred metering. The government argued that metering remains a “critical tool” for managing border capacity and should be available if it becomes necessary again.
Metering, advocates said, was used to turn away migrants during President Donald Trump’s first term. They argued that people who were blocked from seeking asylum instead spent time in makeshift camps in Mexico while they waited for an opportunity to apply. The policy is not currently in place, and the Trump administration had ordered a wider suspension of the asylum system at the start of its second term.
The administration’s position raised concerns among other justices about how metering would treat different categories of border-crossers, including people who enter illegally and those who seek legal entry. In particular, Justice Brett Kavanaugh asked why Congress would “privilege someone who illegally enters the United States?”
A lawyer for the Trump administration maintained that people turned away could come back later. Vivek Suri, assistant to the solicitor general, described metering as a kind of capacity-management delay, saying, “It’s saying our port is at capacity today, try again some other day.”
The court focused heavily on the language at the center of the dispute: the meaning of “arrive in” in the asylum statute. The Justice Department argued that the phrase applies to people who are already inside the United States, which the government said means metering does not reach people authorities stop on the Mexico side of the border. Immigration attorneys, however, said the law has long been understood to require asylum screening for anyone arriving at a port of entry, including those who attempt to request asylum.
Rebecca Cassler, an attorney for the American Immigration Council, argued after the session that “This life saving protection and more importantly, access to it is enshrined in our laws and has been for decades now.” Chief Justice John Roberts pressed Cassler’s position further by asking where someone would need to be, legally, in order to claim asylum. Justice Ketanji Brown Jackson suggested the court’s hypotheticals about how the policy might have operated in prior circumstances were difficult to apply when there is no metering policy in effect now that the justices can directly review.
Jackson said that the case involves “a lot of hypotheticals regarding how this policy may have worked in the past, how it’s possibly going to work in the future,” but “we don’t have a policy in effect right now that we can actually rule on.”
Metering was first used during President Barack Obama’s administration when large numbers of Haitians appeared at the main crossing to San Diego from Tijuana, Mexico. During Trump’s first term, the practice was expanded to all border crossings from Mexico, before the approach ended in 2020 as the coronavirus pandemic led to broader restrictions on asylum-seekers.
Under the Biden administration, the federal government formally rescinded metering in 2021. Also that year, a U.S. District Judge, Cynthia Bashant, an Obama nominee, ruled that metering violated constitutional rights and a federal law requiring officials to screen anyone who arrives at the border seeking asylum. A divided U.S. appeals court affirmed that ruling, and nearly half of the judges on the larger bench later voted to rehear the case, signaling how strongly the dispute may have been on the court’s radar.
If the Supreme Court allows metering to return, it could affect whether border authorities can delay asylum access by limiting who may immediately apply, and it would likely shape how asylum-screening requirements apply at different points along the border process. The metering case is among several immigration lawsuits the court is considering this term, including challenges involving the administration’s efforts to change other immigration protections and eligibility rules.