Supreme Court to Take Up ‘Remain in Mexico’ and Border Wall Cases

October 19, 2020 by Dan McCue
The U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON – The Supreme Court agreed Monday to take up two cases arising from President Donald Trump’s efforts to slow both legal and illegal immigration from Mexico.

Monday’s announcement followed an order late Friday in which the high court said it will fast-track the appeal in a case challenging the administration’s plan to exclude undocumented immigrants from the Census count used to allocate seats in Congress.

The justices granted review to a case challenging the legality of the Trump administration’s “remain in Mexico” policy, which allows the Department of Homeland Security to send asylum seekers back to Mexico while they await an asylum hearing in a U.S. immigration court.

They also said they will hear a case involving the long-running dispute over the funding of President Trump’s border wall between the U.S. and Mexico.

The underlying asylum case stems from President Trump’s decision to impose its “remain in Mexico” policy in December 2018.

Lower courts blocked the White House from implementing the policy, but in March 2020, a majority of the Supreme Court granted the Trump administration request to allow the policy to be enforced pending appeal.

In its petition for review, the administration asked the justices to void a 9th U.S. Circuit Court of Appeals ruling that said the policy is inconsistent with both federal law and the doctrine of international law barring the return of asylum seekers to countries where they may be in danger.

It also asked the Supreme Court to consider whether the lower court overreached when it handed down a nationwide injunction covering regions of the country and even its own state, that are normally outside its jurisdiction.

The petition went on to note that since the Supreme Court allowed the policy to go into effect last Spring, it has prevented more than 60,000 people from being released into the United States while awaiting their asylum hearing.

The border wall case is something of a repeater for the high court.

In July 2019, the court voted 5-4 to allow the Trump administration to continue spending federal money on the project while a legal challenge filed by the Sierra Club continued through the courts.

Earlier this year, the justices turned down a request to impose a temporary pause on construction, rejecting an argument that the wall could be finished before the lawsuit’s conclusion.

The Sierra Club and co-litigant, the Southern Border Communities Coalition, argue the White House lacks authority to spend more on the wall than Congress had already allocated for border security.

They specifically argue President Trump should not be allowed to use $2.5 billion originally allocated to the Defense Department. A lower court blocked the use of those funds for the border wall, and the 9th Circuit turned down a request to put the ruling on hold.

That’s when the Supreme Court intervened for the first time in the case.

On Friday evening the justices agreed to take up the question of whether President Trump can exclude people living in the U.S. illegally from the census count that will be used to allocate seats in the House of Representatives.

In September, a three-judge federal court panel held that the policy is illegal and went on to note that never in U.S. history have immigrants been excluded from the population count that determines how congressional districts — and by extension — Electoral College votes — are divided among the states.

The justices are scheduled to hear the case on Nov. 30, with a decision expected by the end of the year or early in January, when the president has to report census numbers to the House.

There is a possibility that the two cases the Supreme Court took on today may never get heard. Neither case is likely to be scheduled for oral argument until late February 2021. If former Vice President Joe Biden is elected president, he may well have reversed course on both programs, rendering the cases moot.

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