Supreme Court Agrees to Trump Request to Review Cases on Border Wall Funding, Asylum Policy

October 19, 2020 Updated: October 19, 2020

The Supreme Court has agreed to hear legal challenges to President Donald Trump’s signature immigration-related policies—construction of a wall on the nation’s southern border to stem the flow of illegal aliens, and his policy requiring asylum-seekers to wait in Mexico while their claims are adjudicated.

The court, according to its custom, provided no rationale Oct. 19 for granting review in the legal cases, which the Trump administration had asked be reviewed.

Oral arguments aren’t expected to take place before Election Day.

The Supreme Court now has eight members instead of the usual nine because of the death of Justice Ruth Bader Ginsburg on Sept. 18. The Senate Judiciary Committee is scheduled to vote Oct. 22 on the nomination of Judge Amy Coney Barrett of the 7th Circuit Court of Appeals to succeed her. Trump and Senate Republican leaders have said they want Barrett confirmed before Election Day.

The border wall case, Trump v. Sierra Club, concerns whether the president acted constitutionally when he ordered $2.5 billion in military drug interdiction funds redirected to the wall construction project on the U.S.–Mexico border.

The president issued a Feb. 15, 2019, emergency declaration under the National Emergencies Act finding that the border remains “a major entry point” for “illicit narcotics.” The Department of Defense (DOD) was directed to support the Department of Homeland Security (DHS) “in securing the southern border and taking other necessary actions to stop the flow of deadly drugs,” the government’s petition to the high court states.

On Feb. 25 of that year, the DHS formally requested the DOD’s help with the construction of fences, roads, and lighting “to block drug-smuggling corridors on the southern border.” The DOD approved the request with respect to seven projects in Arizona, California, and New Mexico “in sectors of the border where, in the 2018 fiscal year, DHS made hundreds of drug-related arrests and seized thousands of pounds of illegal narcotics.

“The projects consist in part of replacing existing pedestrian fencing or vehicle barriers that had proven to be ineffective with 30-foot-high steel bollard fencing.”

Lawmakers attempted to override Trump’s emergency declaration but failed. The showdown between the executive and legislative branches of the federal government over the funding led to the longest government shutdown in U.S. history, running from Dec. 22, 2018, to Jan. 25, 2019.

Environmentalist groups including the Sierra Club sued over Trump’s efforts to use funding from the DOD Appropriations Act of 2019 to build the wall along the Mexican border.

Lower courts agreed with the activists, who argued that Trump didn’t have the authority to use the military funding for purposes not specifically authorized by Congress and said the construction should be halted because the wall would interfere with opportunities for birdwatching and other recreational activities in the affected areas.

In July 2019, the Supreme Court allowed the government to go forward with construction while the case worked its way through the appeals courts.

Gloria Smith, managing attorney at the Sierra Club, commented on the court’s decision.

“The Trump administration has misused military funds for the construction of a wall that has caused lasting harm to the ecosystems and communities of the borderlands, damaged sacred Indigenous lands beyond repair, and destroyed wildlife and habitats along the border,” she said in a statement.

“Stopping this wasteful and irreversible damage is long overdue, and we look forward to making our case before the Supreme Court.”

Asylum Policy

In the other case the Supreme Court agreed to hear—Wolf v. Innovation Law Lab—the justices will consider the administration’s “Remain in Mexico” program that requires non-Mexican asylum-seekers appearing at the southern border to wait in Mexico for their claims to be adjudicated.

The U.S.  Department of Homeland Security’s Migrant Protection Protocols, unveiled by then-DHS Secretary Kirstjen Nielsen in December 2018, were implemented in an attempt to curtail the so-called catch-and-release system, in which individuals made fraudulent asylum claims knowing they would be allowed into the United States and would be able to stay for years before their court appearance, which many don’t attend.

“Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates. Instead, they will wait for an immigration court decision while they are in Mexico,” Nielsen said in a statement at the time.

Department of Justice spokesperson Alexa Vance offered her thoughts on the decision to hear the appeal.

“The Migrant Protection Protocols program—which is expressly authorized by a statute passed by a bipartisan Congress and signed into law during the Clinton administration, but never used until the Trump administration—has been a critical component of our efforts to manage the immigration crisis on our Southern border,” she said in a statement.

“The Department is pleased that the Supreme Court has granted our petition and will be reviewing this case.”

Lower courts have ruled against the policy, but the Supreme Court previously allowed enforcement to continue while litigation over its lawfulness was pending.

The American Civil Liberties Union, Center for Gender and Refugee Studies, and Southern Poverty Law Center (SPLC) are challenging the policy in court.

Agreeing to hear the case “only prolongs an immoral, unlawful policy that forces individuals to languish under dangerous conditions in Mexico in order to seek asylum in the United States,” Melissa Crow, senior supervising attorney at the SPLC’s Immigrant Justice Project, said in a statement.

“If there is a new administration come next year, ending this policy and the myriad of others the Trump administration has implemented to eviscerate the rights of people seeking asylum must be a top priority.”