On a day on which the court issued major rulings on college sports and securities law, the order list from the justices’ private conference last week made less of a splash on Monday morning. The court did not add any new cases to its docket for the fall, but it did ask the federal government to weigh in on a state supreme court’s interpretation of a federal regulation – a move that could put a potential successor to Justice Stephen Breyer in the spotlight. And in a separate order issued later on Monday morning, the justices threw out a challenge to a Trump-era asylum policy after the Biden administration ended the program.
The justices called for the views of Acting U.S. Solicitor General Elizabeth Prelogar in Marin Housing Authority v. Reilly. The case centers on the interpretation of a regulation adopted by the U.S. Department of Housing and Urban Development that defines “income” for purposes of a federal program, known as Section 8, that provides a subsidy to help low-income families pay their rent. The specific question before the California Supreme Court in the decision below, and on which the federal government has now been asked to opine, is whether the compensation that a parent receives for taking care of her severely disabled adult daughter should be included as “income” when a public housing authority calculates a Section 8 subsidy. A closely divided California Supreme Court ruled that the compensation should be excluded from income. The court’s chief justice, Tani Cantil-Sakauye, wrote a dissenting opinion that was joined by Justice Leondra Kruger, who is often mentioned as one of President Joe Biden’s Supreme Court short-listers.
Separately, in Mayorkas v. Innovation Law Lab, the Supreme Court dismissed the challenge to the Trump administration’s “remain in Mexico” policy, which allowed the Department of Homeland Security to require non-Mexican immigrants seeking asylum at the southern border to stay in Mexico while they awaited U.S. hearings. The dismissal was not a surprise. The court in October 2020 had agreed to weigh in on the policy, but in February the Biden administration had asked the justices to take the case off the February argument calendar.
In a brief filed in June, Prelogar urged the court to invalidate the lower court’s ruling and send the case back with instructions to dismiss the district court’s 2019 order barring the federal government from implementing the policy. Prelogar argued that the case was moot – that is, no longer a live controversy – because Homeland Security Secretary Alejandro Mayorkas ended the “remain in Mexico” policy on June 1. In an unsigned order, the justices did exactly that. The order also turned aside as moot a request by a group of states, led by Texas, to join the lawsuit to defend the policy in the Biden administration’s place.
The justices will meet again for a private conference on Thursday, June 24 – the last regularly scheduled conference before the justices’ summer recess. The court is expected to issue orders from that conference on Monday, June 28, and will almost certainly issue an additional set of orders after its last opinion day of the term.
This post is also published on SCOTUSblog.