Forget Roe v Wade. Will a bolstered Supreme Court majority overrule two key appellate losses for the Trump administration on immigration? Justice Amy Coney Barrett’s arrival will drop her square in the middle of two hot-button cases, both of which might end up mooted by the election.
The Trump administration lost both of these battles in their appellate bête noire, the Ninth Circuit. However, in both cases, the previously constituted Supreme Court had already signaled their skepticism. First, the court granted cert in Trump v Sierra Club, which challenged the administration’s shifting of funds appropriated by Congress to building the border wall, but it’s hardly their first look at the dispute:
A federal appeals court ruled in June that the government improperly diverted $2.5 billion of Pentagon counter-drug program money to build more than 100 miles of border wall. The court said only Congress could approve such a transfer.
President Donald Trump ordered the use of the Defense Department money last year after a fight over his budget that led to a partial government shutdown. It ended after Democrats approved money for border wall construction, but nowhere near what the president wanted.
The wall’s opponents, including the Sierra Club and some border communities, said the president cannot spend more than Congress has authorized or use the money in a manner inconsistent with the purposes of appropriations already made. Their lawsuit also said an emergency declaration law invoked by the president allows use of Pentagon construction funds only to support the military.
As CBS points out, the Supreme Court has had its hands on this case before. In 2019, the court reversed the Ninth Circuit and allowed the administration to spend the money while the case was being heard on its merits. Two months ago, they again decided on a 5-4 basis to allow the administration to use the funds in a interim basis while the case fully went through the appeal process.
Needless to say, the court seems skeptical about some part of the Sierra Club (et al) argument, but what it is may make a big difference. The grant of cert signals that at least four justices take exception to the Ninth Circuit’s final ruling barred the transfer of appropriated funds without congressional approval. That could be as simple as a matter of standing, or it might actually be more substantive. Barrett’s addition to the court would at least appear to move this to a 6-3 position, but that may only be true if standing is the main objection. As an originalist, Barrett (and her fellow originalists on the court) would have to lean toward a position that Congress appropriates funds for specific purposes, such as defense, and that an administration can’t redirect funds for other purposes on its own whims. If there is a statutory mechanism for such transfers, then this isn’t much of a case, but then it would be surprising to see the Ninth Circuit keep digging their heels on it, too.
The second case has its issues as well. By granting cert in Wolf v Innovation Law Lab, the court seems to also be signaling that an earlier order in the case was no fluke:
The second case is a challenge to the Trump administration’s Migrant Protection Protocols, also known as the “Remain in Mexico” policy. The policy requires Central American and other Spanish-speaking migrants seeking asylum along the southern border to stay in Mexico for the duration of their immigration proceedings. Those proceedings have been halted indefinitely due to the pandemic.
The Department of Homeland Security announced the new restrictions on asylum-seekers in December 2018 as part of efforts by the Trump administration to address a surge of migrants arriving at the U.S.-Mexico border. Since the Trump administration began enforcing the policy in January 2019, more than 60,000 migrants were returned to Mexico, according to a Justice Department filing with the Supreme Court. More than 22,000 cases remain pending.
A group of 11 migrants who were returned to Mexico under the policy and six organizations challenged the rule in early 2019, and in February, the 9th U.S. Circuit Court of Appeals upheld a lower court order that blocked enforcement of the policy. But in March, the Supreme Court lifted the freeze, allowing the Trump administration to continue sending asylum-seekers from Central America to Mexico while legal proceedings continued.
In this case, the government seems to be on firmer ground, both procedurally and substantively. Executive authority reaches its zenith on national security issues, and comes close to it on border control as well. The default assumption in this case would be that prosecutorial discretion and foreign policy are within the executive branch’s control, as long as it doesn’t violate existing statutes. For originalists like Barrett, that argument would have the most appeal, as would judicial modesty in refraining from imposing policy rather than applying the law.
In both cases, just the act of granting cert seems to hint that the Supreme Court will find in the Trump administration’s favor. That is, they would do so … if the Trump administration is still in place. As Amy Howe points out, since these are executive policies, a new executive could make these moot before the court even hears arguments:
Both cases are not likely to be scheduled for oral argument until late February 2021 at the earliest. As law professor Steve Vladeck explained in an article for SCOTUSblog late last month, a Biden administration might reverse course on both programs, potentially rendering the cases moot – that is, no longer live disputes.
Whomever Joe Biden appoints as Solicitor General in the event of a victory would no doubt start withdrawing from such cases almost immediately. The court could still consider the cases if they found strong constitutional issues that required resolution, but there’s no appetite for that kind of political brinksmanship in this or any other Supreme Court. Not until Emmett Sullivan gets appointed to it, that is.