Supreme Court to review Trump's border wall funding and 'remain-in-Mexico' program

The Trump administration had asked the court to intervene in both because of decisions against it in lower courts. Also in both cases, the justices have previously allowed the administration to proceed with its plans while the merits of the issues were litigated.

The cases will not be heard until next year, so a change in administrations after next month's election could alter the legal landscape, or even make the court's consideration unnecessary.

In July, the court rejected a last-ditch effort from environmentalists to stop ongoing construction of parts of the border wall. The previous month, a panel of the U.S. Court of Appeals for the 9th Circuit ruled it was unlawful for the administration to use funds intended for the Defense Department on the wall instead.

By the time the court hears the case, lawyers for the American Civil Liberties Union, which is representing the Sierra Club and the Southern Border Communities Coalition, say the Trump administration will have used all of the money.

But the administration told the court it was important for it to weigh in to correct the decision that the president did not have the authority to redirect military funds.

Trump, who ran for office in 2016 promising that Mexico would pay for his plans to expand the border wall, has obtained more than $15 billion in federal funds for his signature project, including $5 billion provided by Congress through conventional appropriations. The president has tapped into Pentagon accounts for the remaining $10 billion, including the $2.5 billion transfer last year that the 9th Circuit said was unlawful.

In 2019, the Supreme Court in an emergency order allowed the administration to proceed with the transfers and contracts for construction, even though House Democrats, affected states and environmental groups said that violated the will of Congress, which withheld the funds from the administration.

As a practical matter, much of the $2.5 billion has been spent and the portions of the wall funded by it have been built. As of the summer, about 40 miles of two projects in New Mexico and Arizona had yet to be completed.

In allowing the administration to proceed, the Supreme Court's conservative majority said the government had "made a sufficient showing at this stage" that private entities could not challenge the transfer of money by the executive branch.

But all lower courts that have heard the dispute have disagreed, with the 9th Circuit panel's merits decision this summer affirming the ruling of a district judge.

"It is for the courts to enforce Congress's priorities," the panel said in a 2-to-1 decision, and it found the Sierra Club "may invoke separation-of-powers constraints, like the Appropriations Clause, to challenge agency spending in excess of its delegated authority."

In its brief, the ACLU said: "It could not be plainer that Congress rejected President Trump's funding request for the wall construction in dispute here. The president himself conceded that Congress turned him down."

In the other case, the court last March granted the Trump administration's emergency request to let it enforce its Migrant Protection Protocols, also known as the "remain-in-Mexico" policy. That allows the Department of Homeland Security to return immigrants who cross at the southern border to Mexico while they wait for their claims to be heard.

The protocol, which took effect in January 2019, was a fundamental change to previous U.S. policy, and was intended to protect against massive migration from Central America.

A federal judge blocked the initiative with a nationwide injunction. He said the policy contradicted the text of the Immigration and Nationality Act. A 9th Circuit panel upheld part of the ruling.

But the Supreme Court last spring said the government could enforce the program.

Challengers have said that restrictions put in place because of the coronavirus pandemic made the Supreme Court's review of the lower court rulings unnecessary at this time.

Moreover, they said the policy is hurtful.

"Asylum seekers face grave danger every day this illegal and depraved policy is in effect," said Judy Rabinovitz, a lawyer for the ACLU, one of the groups challenging the policy. "The courts have repeatedly ruled against it, and the Supreme Court should as well."

A spokesman for the asylum officers' union said Monday that they are anxiously awaiting a Supreme Court ruling in the case, and are worried about the thousands of people spirited away from the border to potential danger.

"The law is that people who knock at our door or who cross our border, whether legally or illegally, have the right to have their asylum case heard in safety," said Michael Knowles, an asylum officer and a spokesman for the union. "They should not be returned somewhere they would be in danger. That's fundamental to the law."

Since last spring, the Trump administration has used emergency pandemic restrictions along the southwestern border that allow agents to "expel" most migrants back to Mexico in a matter of hours.

But after an initial drop in border crossings, arrests have been steadily rising, driven mostly by Mexican adults trying to enter the United States again and again.

The number of migrants that U.S. border agents took into custody rose to a 13-month high in September, according to U.S. Customs and Border Protection figures.

The border wall case is Trump v. Sierra Club and the immigration case is Wolf v. Innovation Law Lab.