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Supreme Court to Review 2 of Trump’s Major Immigration Policies

WASHINGTON — The Supreme Court on Monday agreed to review two major Trump administration immigration initiatives: a program that has forced at least 60,000 asylum seekers to wait in Mexico while their requests are heard and the diversion of $2.5 billion in Pentagon money to build a barrier on the southwestern border.

Lower courts blocked both measures. But the Supreme Court, in earlier orders, allowed them to remain in effect while appeals moved forward.

The arguments in the two cases will not be heard until after the November election. Should President Trump’s Democratic opponent, Joseph R. Biden Jr., win, his administration could take steps to make the cases moot.

In the case on asylum seekers, an appeals court in February blocked the program, known as Remain in Mexico, saying it was at odds with both federal law and international treaties and was causing “extreme and irreversible harm.”

The program applies to people who leave a third country and travel through Mexico to reach the United States border. Since the policy was put in place at the beginning of last year, tens of thousands of people have waited for immigration hearings in unsanitary tent encampments exposed to the elements. There have been widespread reports of sexual assault, kidnapping and torture.

The coronavirus pandemic has also complicated matters. In its brief seeking Supreme Court review, filed in April, the administration acknowledged that “the public health emergency caused by the Covid-19 virus” prompted it to take additional measures making it even harder to seek asylum. “The government’s response to the emergency is fluid,” the brief said, “and measures attributable to the emergency are not at issue in this case.”

The brief said the program, formally called the Migrant Protection Protocols and administered by the Department of Homeland Security, has been successful.

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“During the 14 months that M.P.P. has been in operation, it has been enormously effective: It has enabled D.H.S. to avoid detaining or releasing into the interior more than 60,000 migrants during removal proceedings, and has dramatically curtailed the number of aliens approaching or attempting to cross the Southwest border,” the brief said. “The program has been an indispensable tool in the United States’ efforts, working cooperatively with the governments of Mexico and other countries, to address the migration crisis by diminishing incentives for illegal immigration, weakening cartels and human smugglers, and enabling D.H.S. to better focus its resources on legitimate asylum claims.”

Asylum seekers and legal groups, represented by the American Civil Liberties Union, responded in July that the dispute is for now academic, as the administration, citing the pandemic, has in effect closed the border to asylum seekers. They urged the court to deny review in the case, Wolf v. Innovation Law Lab, No. 19-1212.

In a second brief, the administration said the pandemic did not make the case less urgent.

“The current suspension on introducing certain aliens is a temporary response to the pandemic,” the brief said. “The decisions below impose severe constraints” on the government, the brief said, “and those constraints will endure long past the present emergency.”

After the Supreme Court agreed to hear the case, Judy Rabinovitz, a lawyer with the A.C.L.U., said she hoped the justices would protect her clients.

“Asylum seekers face grave danger every day this illegal and depraved policy is in effect,” she said. “The courts have repeatedly ruled against it, and the Supreme Court should as well.”

In the border-wall case, a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled against the administration in June, saying Congress had not authorized the spending. But the Supreme Court, in a pair of interim orders decided by 5-to-4 votes, had allowed construction to continue until it either denies the administration’s petition seeking review or agrees to hear the administration’s appeal and rules on it.

One of those orders, though it was unsigned and only a paragraph long, indicated that the groups challenging the administration may not have a legal right to do so. That suggested that the court’s conservative majority was likely to side with the administration in the end.

The case arose from Mr. Trump’s efforts to make good on a campaign promise to build the barrier. In early 2019, he declared a national emergency along the Mexican border. The declaration followed a two-month impasse with Congress over funding to build the wall, a standoff that gave rise to the longest partial government shutdown in the nation’s history.

After Congress appropriated only a fraction of what Mr. Trump had sought, he announced that he would act unilaterally to spend billions more.

Soon after, environmental groups sued to stop the president’s plan to use money meant for military programs to build barriers along the border in what he said was an effort to combat drug trafficking. California and New Mexico filed a similar suit.

Judge Haywood S. Gilliam Jr., of the United States District Court for the Northern District of California, blocked the construction in a pair of decisions that said the statute the administration had relied on to justify the transfer did not authorize it.

“The case is not about whether the challenged border barrier construction plan is wise or unwise,” Judge Gilliam wrote. “It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States. Instead, this case presents strictly legal questions regarding whether the proposed plan for funding border barrier construction exceeds the executive branch’s lawful authority.”

The Ninth Circuit affirmed Judge Gilliam’s injunction, saying that “the Constitution delegates exclusively to Congress the power of the purse.”

“The executive branch lacked independent constitutional authority to authorize the transfer of funds,” Judge Sidney R. Thomas wrote for the majority, concluding: “Therefore, the transfer of funds here was unlawful.”

In urging the Supreme Court to hear the case, Trump v. Sierra Club, No. 20-138, lawyers for the administration wrote that “the decisions below concern a matter of exceptional national importance.” The court routinely grants review in cases concerning judicial interference with the executive branch’s efforts to protect the nation’s security, the brief said.

“That standard is plainly met,” the brief said, “by this injunction against the transfer of military funds to assist in the construction of fences on the southern border to stanch the flow of illegal drugs.”

The environmental groups, represented by the A.C.L.U., responded that Mr. Trump should not be permitted to defy Congress.

It could not be plainer that Congress rejected President Trump’s funding request for the wall construction in dispute here,” the brief said. “The president himself conceded that Congress turned him down.”

On Monday, after the Supreme Court agreed to hear the case, Dror Ladin, a lawyer with the A.C.L.U., said his group would prevail before the justices.

“Everyone knows that Trump failed to get Congress to fund his xenophobic wall obsession, and every lower court that has considered the case has found that the president has no authority to waste billions of taxpayer dollars on construction,” he said in a statement. “We look forward to making the same case before the Supreme Court and finally putting a stop to the administration’s unconstitutional power grab.”

Source: nytimes.com

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