Two major Supreme Court immigration cases just went up in smoke

Two major Supreme Court immigration cases just went up in smoke

Originally Published in Vox

Ian Millhiser - February 3, 2021

Elections have consequences.

Part of the border wall between the US and Mexico.
Former President Donald Trump’s border wall will no longer receive a Supreme Court hearing. Micah Garen/Getty Images

Just a few months ago, the current Supreme Court term was likely to be one of the most consequential terms for immigration law in a long time. The Court planned to hear two cases — now known as Mayorkas v. Innovation Law Lab and Biden v. Sierra Club — which questioned the legality of anti-immigration policies put in place during the Trump administration.

But the Biden administration rescinded one of these policies and drastically curtailed the other, and asked the justices to remove arguments in both Innovation Law Lab and Sierra Clubfrom its calendar in light of these policy changes.

On Wednesday, the Supreme Court granted those requests.

President Joe Biden signed a proclamation on January 20, his first day in office, declaring that “no more American taxpayer dollars [shall] be diverted to construct a border wall,” ending his predecessor’s plans to spend billions of dollars appropriated for the military on this wall.

The same day, then-acting Secretary of Homeland Security David Pekoske issued a memorandum that curtailed the Trump administration’s “remain in Mexico” policy. That policy forced tens of thousands of migrants who seek asylum in the United States to wait in Mexico while their cases were being processed (the Trump administration stopped processing these cases last March, citing the Covid-19 pandemic).

The Biden administration’s new policy does not end the remain in Mexico program in its entirety, but it does provide that new asylum seekers will not be forced to enroll in the Trump-era program.

Technically, the two cases remain before the justices, and the Court could place them back on its argument calendar at any time. But the Court’s decision to cancel oral arguments in the two immigration cases is a very good sign that the suits will eventually be disposed of without a decision.

Had Trump remained in office, it is very likely that the Supreme Court would have upheld both programs. Although a lower court halted Trump’s plans to spend military funds on the border wall, the Supreme Court temporarily blocked that lower court decision last summer. The justices also temporarily reinstated the remain in Mexico policy last March, after a lower court ruled against it.

Thus, had the two cases remained on the Court’s calendar, it is likely that a future Republican president would have been able to reinstate Trump’s policies immediately, and without having to worry about legal challenges. Wednesday’s order, by contrast, means that, if a future president wants to reinstate the policies, they will likely face the same legal challenges that Trump faced.

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