SCOTUS to hear border wall funding, ‘Remain in Mexico’ appeals

The Supreme Court of the United States agreed Monday to hear the Trump administration’s appeal of a lower court ruling that it improperly diverted money to build portions of the border wall with Mexico as well as an appeal of an administration policy that makes asylum-seekers wait in Mexico for U.S. court hearings.

The high court has previously allowed construction of the border wall to continue, even after a federal appeals court ruled in June that the administration had illegally sidestepped Congress in transferring the Defense Department funds.

The cases will not be argued before the winter, and it’s unclear how the outcome of the presidential election would affect the case if Democrat Joe Biden wins the White House.

It’s also not clear whether the administration has spent all of the $2.5 billion it moved to the wall project. Dissenting from a July order that allowed construction to continue, Justice Stephen Breyer wrote that the court’s action “I fear, may operate, in effect, as a final judgment.”

The case has its origins in the 35-day partial government shutdown that started in December of 2018. Trump ended the shutdown after Congress gave him approximately $1.4 billion in border wall funding, but that was far less than the $5.7 billion he was seeking. Trump then declared a national emergency to take cash from other government accounts to use to construct sections of the wall.

At the time, the money Trump identified included $2.5 billion in Defense Department money, $3.6 billion from military construction funds and $600 million from the Treasury Department’s asset forfeiture fund.

The case before the Supreme Court involved just the $2.5 billion in Defense Department funds. The American Civil Liberties Union sued the Trump administration on behalf of the Sierra Club and Southern Border Communities Coalition. California led a similar lawsuit on behalf of several states.

Justices also agreed to hear a challenge to Trump’s “Migrant Protection Protocols” policy, known informally as “Remain in Mexico,” which was introduced in January 2019. It became a key pillar of the administration’s response to an unprecedented surge of asylum-seeking families at the border, drawing criticism for having people wait in highly dangerous Mexican cities.

Lower courts found that the policy is probably illegal. But earlier this year the Supreme Court stepped in to allow the policy to remain in effect  while a lawsuit challenging it plays out in the courts.

More than 60,000 asylum-seekers were returned to Mexico under the policy. The Justice Department estimated in late February that there were 25,000 people still waiting in Mexico for hearings in U.S. court. Those hearings were suspended because of the coronavirus pandemic.

In a statement after the high court agreed to take the case, Judy Rabinovitz, an attorney for the American Civil Liberties Union, which is challenging the policy, called the policy “illegal and depraved.”

“The courts have repeatedly ruled against it, and the Supreme Court should as well,” she said.