The Supreme Court on Wednesday removed two cases from its February argument session after the Biden administration began to unwind the two immigration policies being challenged in the cases. Although the release of an order list on a Wednesday morning during the justices’ winter recess was unexpected, the decision to take Mayorkas v. Innovation Law Lab and Biden v. Sierra Club off the February calendar, which begins on Feb. 22, was not. Acting U.S. Solicitor General Elizabeth Prelogar had asked the justices on Monday to do exactly that, with the consent of the challengers in both cases.
Prelogar cited changes in policy announced by President Joe Biden that could potentially render the cases moot. Innovation Law Lab is a challenge to a Trump administration policy that allowed the Department of Homeland Security to require non-Mexican immigrants seeking asylum at the southern border to remain in Mexico while awaiting hearings in the United States. After Biden’s inauguration, the Department of Homeland Security issued a memorandum that ends the enrollment of new immigrants in the “remain in Mexico” program. Sierra Club is a challenge to President Donald Trump’s redirection of funds to build the U.S.-Mexico border wall. Biden has banned the use of taxpayer funds to build the wall and has called for an end to its construction.
The justices also added one new case to their merits docket for this term: PennEast Pipeline Co. v. New Jersey, a clash over PennEast’s efforts to build a natural-gas pipeline through Pennsylvania and New Jersey. The U.S. Court of Appeals for the 3rd Circuit ruled that the company’s lawsuits under the Natural Gas Act to acquire land owned by New Jersey through eminent domain were barred by New Jersey’s sovereign immunity from lawsuits under the Constitution’s 11th Amendment. PennEast went to the Supreme Court last year, where it urged the justices to take the case to avoid the “direct, immediate, and severe consequences” that it predicted the 3rd Circuit’s ruling would otherwise have on the country’s energy markets. After the federal government agreed that review was warranted, the justices added the case – with an additional question about the 3rd Circuit’s jurisdiction to review the case – to their April calendar.
This post is also published on SCOTUSblog.