The Supreme Court announced on Monday morning that it would take up two cases arising out of the Trump administration’s effort to stem immigration through the United States’ border with Mexico. The justices granted review to weigh in on the long-running dispute over the funding for President Donald Trump’s border wall, as well as the legality of the Trump administration’s “remain in Mexico” policy, which allows the Department of Homeland Security to return immigrants seeking asylum to Mexico while they wait for an asylum hearing in U.S. immigration court.
Monday’s announcement followed an order on Friday fast-tracking the Trump administration’s appeal in a third case relating to immigration: Trump v. New York, a dispute over the administration’s plan to exclude undocumented immigrants from the population count used to allocate seats in the House of Representatives. However, unlike Trump v. New York, it seems possible – if Democrat Joe Biden wins the White House in the upcoming election and cancels the two controversial border policies – that the court may not ultimately hear argument in either case granted on Monday.
The decision to grant review in Trump v. Sierra Club did not come as a surprise. In July 2019, the court – by a vote of 5-4 – allowed the federal government to continue to spend federal money to build the wall while a legal challenge continued. The justices then turned down a July 2020 request to order a temporary stop to construction, rejecting the challengers’ argument that the government might be able to finish building the wall before the litigation is finished.
The lawsuit now before the court began in 2019, when the Sierra Club, an environmental group, and the Southern Border Communities Coalition, which promotes policies to improve the quality of life in communities along the border, sued to stop the wall. They argued that federal government officials lacked the authority to spend more on the wall than Congress had already allocated for border security. And in particular, the groups contended, the government could not use $2.5 billion originally earmarked for military-personnel funds, which the Department of Defense had redirected to counter-narcotics funds to allow the money to be used for the wall.
U.S. District Judge Haywood Gilliam blocked the government from using the funds at the center of the dispute to build the border wall, and the U.S. Court of Appeals for the 9th Circuit turned down a request from the federal government to put that ruling on hold while the government appealed. The government found more success in the Supreme Court, which in July 2019 granted the Trump administration’s request to stay the 9th Circuit’s ruling.
Justice Stephen Breyer filed a separate decision in which he observed that there were two conflicting interests in the dispute: The Sierra Club and the SBCC had argued that the construction of the wall would harm the environment, while the government contended that it needed to finalize contracts for the construction by Sept. 30, 2019, the end of the fiscal year, to ensure that the funds were still available. Breyer wrote that he would have reached a middle ground, allowing the government to finalize the contracts but not to begin construction.
After the 9th Circuit upheld Gilliam’s decision on the merits, the Sierra Club and the SBCC returned to the Supreme Court in July, asking the justices to lift their stay. The vote was once again 5-4. Breyer filed a short dissent that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer explained that he would have lifted the stay and stopped construction because of the possibility that allowing construction to continue could effectively serve as a final judgment in the case.
A few days after the court denied the request to lift the stay, the Trump administration filed its petition for review of the 9th Circuit’s decision in both the Sierra Club and SBCC’s case and a similar challenge filed by California and New Mexico. The administration argued that the challengers did not have a right to bring a lawsuit claiming that Acting Secretary of Defense Patrick Shanahan exceeded his powers in transferring the funds for the wall. And in any event, the administration continued, the transfer did not violate federal funding laws, which allow transfers of up to $4 billion as long as the secretary of defense finds that they would serve the national interest.
The groups urged the justices not to review the 9th Circuit’s ruling, telling the justices that there is “no dispute” that they are injured by the construction of the wall. The decision to transfer the funds was contrary to “Congress’s deliberate decision to limit wall construction to a defined geographic area,” they argued. California and New Mexico added that the disagreement between Congress and the president about how much money to spend on the wall was “so severe” that it led to a month-long shutdown of the federal government at the end of 2018 and the beginning of 2019.
The Trump administration formally announced the “remain in Mexico” policy, officially known as the Migrant Protection Protocols, in December 2018, but the lower courts blocked the government from implementing the policy. In March, over a dissent from Sotomayor, the justices granted a request from the Trump administration to allow it to enforce the policy while it appealed to the Supreme Court.
In its petition seeking review in Wolf v. Innovation Law Lab, the government asked the Supreme Court to review the 9th Circuit’s ruling that the policy is likely inconsistent with both federal immigration law and the doctrine of international law barring the return of asylum seekers to countries where they may be in danger. The government also asked the court to weigh in on the validity of the nationwide injunction that the district court issued, which (absent the Supreme Court’s stay) would have barred the government from enforcing the policy anywhere in the country. While the policy has been in effect, the government told the justices, “it has been enormously effective,” keeping more than 60,000 migrants from being released into the United States while they await asylum proceedings and “dramatically” reducing the number of people attempting to cross the U.S.-Mexico border.
Groups that provide services to migrants told the court that the policy is “unprecedented,” stressing that it requires asylum seekers to return to “highly dangerous conditions” in Mexico. But they told the justices that there is no need to intervene because the coronavirus pandemic led to a closure of the border for asylum seekers, so that denying review “would have little practical effect on the government.” The case is still in its early stages, they added, so the justices can always decide to take up the issues later if circumstances change. However, they continued, the 9th Circuit’s ruling is in any event correct.
Both cases are not likely to be scheduled for oral argument until late February 2021 at the earliest. As law professor Steve Vladeck explained in an article for SCOTUSblog late last month, a Biden administration might reverse course on both programs, potentially rendering the cases moot – that is, no longer live disputes.
This post is also published on SCOTUSblog.