Originally Published in Vox
Nicole Narea - October 20, 2020
Trump’s border wall, the “Remain in Mexico” policy, and his attempt to weaponize the census against immigrants hang in the balance.
After the election, the Supreme Court will hear three major cases about immigration policies that seek to keep immigrants arriving on the southern border out and erode the political influence of unauthorized immigrants living in the US.
If President Donald Trump loses the election next month, Joe Biden as president is likely to at least attempt to reverse the policies in question, making the cases moot. But if Trump wins, the cases would be decided next year, potentially enabling his attempts to further his restrictionist immigration agenda in a second term.
The justices previously agreed to hear a case about Trump’s attempt to exclude unauthorized immigrants from 2020 census population counts that will be used to draw congressional districts. States with large populations of unauthorized immigrants — California and Texas among them — could lose seats in Congress as a result.
The justices announced Monday that they would hear two new cases as well, one of which concerns Trump’s attempt to divert billions in Pentagon funds for the construction of a wall on the southern border — a rallying cry among his base in 2016. The other is a challenge to his Migration Protection Protocols (MPP), also known as the “Remain in Mexico” policy, under which thousands of asylum seekers have been forced to wait in Mexico, often for months on end, for a chance to obtain protection in the US.
Biden has vowed to end the Remain in Mexico policy and revoke Trump’s census memorandum, if that’s possible. He has also criticized the border wall as a colossal waste of taxpayer money since most contraband is smuggled through ports of entry and the vast majority of unauthorized immigrants living in the US arrived legally but overstayed their visas.
And even if Trump prevails, it’s not clear that the Supreme Court would rule in his favor, even with the president’s nominee Amy Coney Barrett on the bench.
The Supreme Court has upheld some of Trump’s signature immigration policies, including his travel ban policy. But it has also thwarted him at key moments: It has temporarily prevented him from ending the Deferred Action for Childhood Arrivals program, which has allowed more than 700,000 young unauthorized immigrants to live and work in the US, and blocked him from putting a citizenship question on the 2020 census, which experts said would depress response rates in immigrant communities.
In those rulings against Trump, Chief Justice John Roberts joined the court’s liberals and cast deciding votes. It’s not clear whether Barrett would play a similar role or if she would tip the scales in favor of conservatives on these high-profile immigration cases.
The fate of Trump’s border wall rests with the justices
On the campaign trail in 2016, Trump made building the border wall a centerpiece of his platform. He pledged that Mexico would pay for it, but that never came to pass; instead, the administration transferred $2.5 billion in Pentagon funds in order to construct it after Congress refused to fully fund the project.
California, New Mexico, and environmental groups including the Sierra Club challenged the administration’s use of those funds, claiming that it did not have the authority to make the transfer. Lower courts have agreed, but the Supreme Court could overturn those rulings, announcing on Monday that it would hear the case.
The Secretary of Defense is permitted by law to transfer military funds appropriated by Congress if higher funding priorities arise due to “unforeseen military requirements” and, critically, if Congress has not objected. But as the environmental groups have argued, the border wall was one of Trump’s longtime political goals — not a response to an unanticipated military threat — and one that Congress rejected in the 2019 budget it passed after Trump had made the funding request.
The administration has argued, on the other hand, that the border wall is a legitimate response to the national emergency concerning unauthorized immigration and drug smuggling across the southern border, which Trump declared in February 2019. Though that emergency declaration remains in effect, migration appears to have drastically dropped over the last year. The US apprehended 400,651 people at the southern border over fiscal year 2020, which ended on September 30 — less than half the number apprehended in 2019.
The justices have already hinted at how they might rule: They intervened at an earlier stage of the lawsuit, permitting construction of the border wall to continue while the case made its way through the lower courts.
That has given Trump license to speed up construction ahead of the election, often cutting through national forests and wildlife preserves to do so.
The Remain in Mexico policy is essential to Trump’s strategy on the border
The Supreme Court will also weigh in on Trump’s Remain in Mexico program, one of Trump’s core policies on the southern border, which went into effect in January 2019. Since then, more than 60,000 asylum seekers have been sent back to Mexico, where they’re under threat from drug cartels and kidnappers and are dependent on volunteers for basic supplies.
The American Civil Liberties Union, among others, has challenged the policy on the basis that it has resulted in asylum seekers being sent back to their persecutors. But the Trump administration has credited the program as one of its key tools in reducing the number of migrants coming across the southern border.
Without explaining their reasoning, the justices previously allowed the program to remain in effect while the appeals process played out.
Before MPP, migrants who waited in line at the border, as well as those who were apprehended between ports of entry, would have been held at a US Customs and Border Protection processing facility until a border agent determined whether they should be released, transferred to immigration detention, or deported. But under MPP, they were mostly turned away at the border and allowed to enter the US only to attend their immigration court hearings.
Since the pandemic hit, however, the administration has turned to other methods of keeping them out. US Customs and Border Protection invoked public health authorities to turn away asylum seekers who might be carrying the coronavirus. Some of them are still waiting in Mexican border towns, where they have limited access to legal counsel and reside in tent encampments.
Trump wants to weaponize the census against immigrants
Last week, the justices announced that they would review a case over Trump’s memorandum excluding unauthorized immigrants living in the US from census population counts for the purposes of redrawing congressional districts in 2021 — a transparent attack on their political power that was struck down by lower courts. The justices will hear arguments in the case on November 30, ahead of a December 31 federal deadline for sending the population counts to Congress.
Most states currently draw congressional districts, determining the areas that each elected official represents based on total population, including unauthorized immigrants. Current maps are due to be redrawn across the country in 2021 after the results of the 2020 census come in, and the stakes are high: Each redistricting has a lasting influence on who is likely to win elections, which communities will be represented in Congress, and, ultimately, what laws will be passed.
Trump’s attempt to exclude unauthorized immigrants would reduce the counts in areas where foreign-born populations have traditionally settled — primarily Democrat-run cities — and therefore undermine their political power relative to more rural, Republican-run areas. But it could also impact red states with large immigrant populations, including Texas.
The administration has argued that, by law, the president has the final say over who must be counted in the census.
In a written statement issued after he signed the memorandum in July, Trump said that allowing unauthorized immigrants to be counted would undermine American representative democracy and create “perverse incentives” for those seeking to come to the US.
“There used to be a time when you could proudly declare, ‘I am a citizen of the United States,’” Trump said in the statement. “But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of Americans citizens, and I will not stand for it.”
But on September 10, a panel of three federal judges found that Trump’s memorandum skirted the federal government’s constitutional obligation to count every person, no matter their immigration status, in the census every 10 years.