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The U.S. Supreme Court on Wednesday granted motions filed by President Joe Biden’s administration to remove from the argument calendar two controversial Trump-era cases decided by the 9th Circuit Court of Appeals in San Francisco.
The first case dealt with the Trump administration’s policy formally called the “Migrant Protection Protocols” but frequently referred to as “Remain in Mexico.” That policy required individuals seeking asylum in the United States to wait in Mexico until their applications could be heard.
The second case — sometimes called the “Border Wall” litigation — involved then-President Donald Trump’s decision to divert billions of dollars from other federal programs to construct or expand the southern border wall by declaring a national emergency.
Both cases originated in the Northern District of California and were initially decided by federal judges in the Bay Area.
In the Remain in Mexico case, in April 2019, U.S. District Judge Richard Seeborg determined that the adoption of the policy violated the Federal Administrative Procedure Act. Seeborg entered a preliminary injunction against the government preventing it from “continuing to implement or expand” the policy.
The 9th Circuit subsequently affirmed the trial court decision because it was “very clear” that the MPP violated the statute, and in March 2020 that court turned down the government’s request to suspend the injunction while the government sought review in the Supreme Court.
The court did however limit the geographic scope of the injunction to the states in the 9th Circuit.
In March 2020, the Supreme Court overrode the 9th Circuit and granted the government’s request to suspend the injunction pending appeal, allowing the policy to go into effect.
The high court subsequently granted a writ of certiorari indicating that it would exercise its discretionary authority to review the case. Argument before the justices was scheduled for March 1, 2021.
More than 68,000 individuals have been returned to Mexico pursuant to the policy, according to the government’s recent filing.
Litigation spawned in California
Like the Remain in Mexico case, the Border Wall litigation was initiated in California.
In May 2019, U.S. District Judge Haywood Gilliam Jr., sitting in Oakland, blocked the construction of two southern wall segments because use of the funds unlawfully trammeled Congress’ authority to appropriate federal funds. He entered a preliminary injunction against the government proceeding with construction.
A divided panel of the 9th Circuit affirmed the decision in June 2020.
In October, the Supreme Court agreed to hear the case and argument was scheduled for Feb. 22.
Elizabeth Prelogar, acting solicitor general for the Biden administration, filed motions in both cases to ‘hold the briefing schedule in abeyance” and remove the cases from the argument calendar.
In the Remain in Mexico case, her request was based on a memorandum issued Jan. 20 (Inauguration Day) by the Acting Secretary of Homeland Security stating that the DHS would “suspend new enrollments in [MPP], pending further review of the program.” Given that decision, the solicitor general asked the high court to put the case on hold.
In the Border Wall case, a similar request was based on an Inauguration Day proclamation issued by President Biden that stated ”[i]t shall be the policy of [this] Administration that no more American taxpayer dollars be diverted to construct a border wall.”
According to the filing, the Biden administration is currently undertaking an “assessment of the legality of the funding and contracting methods used to construct the wall” and of “the administrative and contractual consequences of ceasing each wall construction project.”
Given those facts, the government said the case should be put on hold without prejudice to either side’s right to have the case restored to the argument calendar in the future.
The Supreme Court granted both motions without comment.