Originally Published in The New York Times
Adam Liptak - October 19, 2020
WASHINGTON — The Supreme Court agreed on Monday to review two major Trump administration immigration initiatives, adding them to a docket now crowded with cases that will test President Trump’s agenda and policies.
The court, which might have been expected to tread cautiously while it is short-handed in the aftermath of Justice Ruth Bader Ginsburg’s death last month, has instead seemed determined to weigh in on many aspects of the Trump presidency, even if it could end soon.
The cases the court took on Monday are challenges to a program that has forced at least 60,000 asylum seekers to wait in Mexico while their requests are heard and the diversion of $2.5 billion in Pentagon money to build a barrier on the southwestern border.
In the past week alone, the court handed Mr. Trump at least interim victories by allowing his administration to cut short fieldwork for the 2020 census and by fast-tracking a case on whether it may exclude undocumented immigrants from the population figures used to allocate congressional seats. The court’s actions raised the prospect that it might allow the president to influence the reapportionment process to benefit Republican states even if he loses the election.
In the coming days, the court is likely to act on a last-ditch emergency request from Mr. Trump to block the disclosure of his financial records to a New York grand jury. The court will also shortly address a dispute from Wisconsin on deadlines for mailed ballots, a form of voting that Mr. Trump has ceaselessly and baselessly attacked.
And next month, the court will hear arguments in a challenge to the Affordable Care Act brought by Republican state officials and backed by the Trump administration.
The court is very likely to be back at full strength soon, as Judge Amy Coney Barrett, Mr. Trump’s Supreme Court pick, appears to be on track to be confirmed next week. She would expand and cement the court’s conservative majority, and the court’s recent actions, along with an inevitable parade of election disputes in coming weeks, have ensured that she will play a role in determining the lawfulness of some key programs and policies of the president who appointed her.
The arguments in the two new immigration cases will probably not be heard until February, long after the election. Should Mr. Trump’s Democratic opponent, Joseph R. Biden Jr., win, his administration could take steps to make the cases moot.
But Judge Barrett will almost certainly play a role in deciding the voting disputes that have been arriving at the court almost daily. She will very likely hear arguments in the health care case on Nov. 10 and the reapportionment case on Nov. 30. And, unless the court acts very quickly to shut down the case on Mr. Trump’s financial records, she will probably participate in that case, too.
Still, a Biden administration, particularly one working with a Congress controlled by Democrats, will have ways to roll back many Trump administration’s initiatives, said Theresa Cardinal Brown, the director of immigration and cross-border policy at the Bipartisan Policy Center. The immigration cases, she said, showed “the challenge of relying on executive action for large and sweeping policies when there are litigants out there ready to litigate.”
“This is sort of one of the impacts of all the litigation against the Trump administration’s policies,” Ms. Brown said. “What happens to the litigation once the administration is no longer in place and the policies are no longer being enforced by a new administration?”
In the case on asylum seekers, the United States Court of Appeals for the Ninth Circuit blocked the program, known as Remain in Mexico, in February, saying it was at odds with both federal law and international treaties and was causing “extreme and irreversible harm.” The next month, the Supreme Court stayed that ruling while appeals moved forward.
The program applies to people who leave a third country and travel through Mexico to reach the United States border. Since the policy was put in place at the beginning of last year, tens of thousands of people have waited for immigration hearings in unsanitary tent encampments exposed to the elements. There have been widespread reports of sexual assault, kidnapping and torture.
The coronavirus pandemic has also complicated matters. In its brief seeking Supreme Court review, filed in April, the administration acknowledged that “the public health emergency caused by the Covid-19 virus” prompted it to take additional measures making it even harder to seek asylum.
The Trump administration began using a public health emergency rule in March to rapidly turn away migrants to Mexico or their home countries without providing most the opportunity to request asylum. The policy, which expels migrants within hours of being detained, has also had the unintended consequence of giving migrants more chances to cross illegally as border crossings have steadily increased since this summer.
Customs and Border Protection recorded 197,043 expulsions in the fiscal year that ended on Sept. 30, but in 37 percent of the cases, the agents rapidly returned a migrant who had previously crossed the border.
The administration’s brief said the original program — formally called the Migrant Protection Protocols, or M.P.P., and administered by the Department of Homeland Security — had been successful.
“During the 14 months that M.P.P. has been in operation, it has been enormously effective: It has enabled D.H.S. to avoid detaining or releasing into the interior more than 60,000 migrants during removal proceedings, and has dramatically curtailed the number of aliens approaching or attempting to cross the southwest border,” the brief said.
Asylum seekers and legal groups, represented by the American Civil Liberties Union, responded in July that the dispute was, for now, academic, as the administration, citing the pandemic, had in effect closed the border to asylum seekers. They urged the court to deny review in the case, Wolf v. Innovation Law Lab, No. 19-1212.
In a second brief, the administration said the pandemic did not make the case less urgent.
“The current suspension on introducing certain aliens is a temporary response to the pandemic,” the brief said. “The decisions below impose severe constraints” on the government, the brief said, “and those constraints will endure long past the present emergency.”
After the Supreme Court agreed to hear the case, Judy Rabinovitz, a lawyer with the A.C.L.U., said she hoped the justices would protect her clients.
“Asylum seekers face grave danger every day this illegal and depraved policy is in effect,” she said. “The courts have repeatedly ruled against it, and the Supreme Court should as well.”
Alexa Vance, a Justice Department spokeswoman, said the program had “been a critical component of our efforts to manage the immigration crisis on our southern border.”
In the border-wall case, a divided three-judge panel of the Ninth Circuit ruled against the administration in June, saying Congress had not authorized the spending. But the Supreme Court, in a pairof interim orders decided by 5-to-4 votes, had allowed construction to continue until it ruled in the case.
One of those orders, though it was unsigned and only a paragraph long, indicated that the groups challenging the administration may not have a legal right to do so. That suggested that the court’s conservative majority was likely to side with the administration in the end.
The case arose from Mr. Trump’s efforts to make good on a campaign promise to build the barrier. In early 2019, he declared a national emergency along the Mexican border. The declaration followed a two-month impasse with Congress over funding to build the wall, a standoff that gave rise to the longest partial government shutdown in the nation’s history.
After Congress appropriated only a fraction of what the president had sought, he announced that he would act unilaterally to spend billions more.
The administration has rushed to build the barrier along 450 miles of the southwestern border before the end of the year. Mr. Trump has built 371 miles of new wall, and while most of it stands in areas where dilapidated or vehicle barriers once stood, the taller new wall has disrupted environmental sites, Indigenous lands and the private property of landowners.
Environmental groups sued to stop the president’s plan to use money meant for military programs to build barriers along the border in what he said was an effort to combat drug trafficking. California and New Mexico filed a similar lawsuit.
Judge Haywood S. Gilliam Jr., of the United States District Court for the Northern District of California, blocked the construction in a pair of decisions that said the statute the administration had relied on to justify the transfer did not authorize it.
The Ninth Circuit affirmed Judge Gilliam’s injunction, saying that “the Constitution delegates exclusively to Congress the power of the purse.”
In urging the Supreme Court to hear the case, Trump v. Sierra Club, No. 20-138, lawyers for the administration wrote that “the decisions below concern a matter of exceptional national importance.” The court routinely grants review in cases concerning judicial interference with the executive branch’s efforts to protect the nation’s security, the brief said.
The environmental groups, represented by the A.C.L.U., respondedthat Mr. Trump should not be permitted to defy Congress.
Zolan Kanno-Youngs contributed reporting.