Supreme Court Accepts Trump Appeals on Border Wall, Asylum

The U.S. Supreme Court agreed to hear two appeals from President Donald Trump’s administration over policies at the Mexican border, accepting cases on his use of Pentagon funds to build fencing and his requirement that asylum-seekers remain in Mexico until their cases are decided.

Both cases could fizzle if Democrat Joe Biden defeats Trump in the Nov. 3 election and moves to scrap the disputed policies. But should Trump win re-election, rulings in his favor would bolster his long-term spending and border-control authority.

The new cases come on top of one the justices accepted Friday to determine whether Trump can exclude undocumented immigrants from the 2020 census count. With the Republican-controlled Senate poised to confirm Amy Coney Barrett to fill a vacancy, the court could have a 6-3 conservative majority before Election Day.

Amy Coney Barrett listens during her confirmation hearing in Washington, D.C. on Oct. 14.

Photographer: Stefani Reynolds/Bloomberg

Under the court’s normal scheduling practices, arguments in the two new cases wouldn’t take place until late February or early March, at least a month after the Jan. 20 inauguration.

In the wall case, the justices will review two federal appeals court rulings that were designed to block Trump from using a national-emergency declaration to spend $2.5 billion that was originally appropriated for other purposes.

Most if not all of the fiscal 2019 dollars have been spent, so the case may have limited practical implications for the wall. The Supreme Court cleared Trump to start using the money in July 2019 and refused to revisit the issue a year later. Trump has been rushing to complete as much wall as possible along the 2,000-mile (3,200-kilometer) Mexico border before the election.

Pentagon Spending

The core legal question is whether the Pentagon had authority to transfer the money into its counter-narcotics fund to build barriers in stretches of the border the administration says are used heavily by drug smugglers.

The issue “is a question of significant practical importance to the executive branch’s national security efforts at the southern border,” acting U.S. Solicitor General Jeffrey Wall told the high court.

California, New Mexico and the Sierra Club are among those challenging the transfers.

The Trump administration’s stance would “allow the executive branch to avoid review of any spending it undertakes, even when it is in direct contradiction to Congress’s appropriations acts,” according to a brief filed on behalf of the Sierra Club and another advocacy group by the American Civil Liberties Union.

The case is Trump v. Sierra Club, 20-138.

The Border Wall That U.S., Not Mexico, Is Paying For: QuickTake

In the asylum case, the justices will review a federal appeals court decision that said the Migrant Protection Protocols policy runs afoul of U.S. immigration law. The ruling aimed to let some people wait in the U.S. while their asylum applications are being processed.

Sonia Sotomayor

Photographer: Mandel Ngan/AFP via Getty Images

The administration has used the MPP, as the policy is known, to force 60,000 asylum-seekers to stay in Mexico, many in squalid tent camps. The Supreme Court signaled support for the policy in March, when the justices allowed continued enforcement as the litigation moves forward. Justice Sonia Sotomayor cast the lone public dissenting vote.

System Strain

The coronavirus outbreak means the immediate impact of the case is likely to be limited. A March 20 order by the Centers for Disease Control and Prevention closed the border to asylum seekers, effectively superseding the MPP during the pandemic. The administration has also suspended consideration of pending asylum requests.

Before MPP, people seeking asylum had to either be detained in the U.S. or released inside the country. The administration argued in its appeal that the immigration system had become overwhelmed, with about 2,000 inadmissible immigrants arriving at the southern border every day and a growing number claiming they would be in danger if they were sent home.

“MPP has dramatically eased the strain on the United States’ immigration-detention system and reduced the ability of inadmissible aliens to abscond into the interior,” Wall told the Supreme Court in the appeal.

Opponents represented by the ACLU say the asylum seekers are being exposed to kidnapping, assault and rape in Mexico.

“Pursuant to MPP, the government returns asylum seekers to some of the most dangerous parts of Mexico -- and the world,” the group argued. “The State Department has designated parts of the border where MPP is applied as ‘Level 4: Do Not Travel To’ -- the same threat level assigned to active-combat zones such as Syria and Iraq.”

The group said the policy violates federal immigration law, as well as U.S. obligations under domestic and international law not to send people to places where they will suffer persecution or torture.

The Supreme Court last year backed Trump on a related border issue, clearing his administration to enforce a rule that sharply limited who can apply for asylum at all. That rule requires people who come from countries other than Mexico to first apply for protection from one of the countries they pass through along the way.

The case is Wolf v. Innovation Law Lab, 19-1212.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Jon Morgan at jmorgan97@bloomberg.net

Elizabeth Wasserman

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