Bay Area Courts Challenged Trump on Immigration. Now the Cases Head to Supreme Court

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An older section of border wall that separates the United States and Mexico ends at a ravine on January 27, 2019 near Campo, California.  (Scott Olson/Getty Images)

Two controversial Trump administration immigration policies that were ruled illegal by federal courts in the San Francisco Bay Area will be decided by the U.S. Supreme Court in coming months, the high court announced Monday.

One case deals with President Donald Trump’s approach to funding the border wall, The other deals with the policy known as “Remain in Mexico,” aimed at keeping asylum seekers out of the United States while they await hearings in immigration court.

Both the wall and the asylum restrictions have been central to the president’s emphasis on halting immigration at the U.S.-Mexico border, and casting immigrants as a threat. The cases also raise the question of how much power the president has to implement his policies without restriction, legal scholars say.

But the outcome of the Nov. 3 presidential election could affect the future of these border policies more than the Supreme Court. If Democratic nominee and former Vice President Joe Biden wins, he could roll them back, leaving the cases moot.

Looking for Funds for a Border Fence

Trump made building “a big, beautiful wall” a central campaign theme in 2016. But Congress granted less than $1.4 billion for border fencing last year, far short of the $5.7 billion the administration sought. So the president announced a state of emergency, alleging that it enabled him to redirect billions of dollars that Congress had appropriated to the Defense Department for other purposes.

The Sierra Club and the Southern Border Communities Coalition sued, saying that the move violated the separation of powers spelled out in the U.S. Constitution, which gives Congress the sole right to appropriate funds. And a federal judge in Oakland — U.S. District Judge Haywood Gilliam — ruled in June 2019 that the diversion of funds was illegal. The 9th U.S. Circuit Court of Appeals agreed, but the U.S. Supreme Court allowed construction to proceed while the case is being decided.

“Every lower court that has considered the case has found that the President has no authority to waste billions of taxpayer dollars on construction,” Dror Ladin, a senior staff attorney at the ACLU and lead counsel in the case, 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.”

The Trump administration says it has built 341 miles so far, but almost all of that is new fencing to replace sections of the existing fence, which covers close to 700 miles of the 2,000 mile border.

A Policy to Deter Asylum Seekers

The second case the high court agreed to hear deals with the 2018 Remain in Mexico policy, formally known as the Migrant Protection Protocols. The protocols aim to prevent migrants from “gaming” the asylum system for economic opportunity in the U.S. The policy allows U.S. border authorities, after an initial asylum screening, to turn back non-Mexican adults to wait for an immigration court hearing on the Mexican side of the border.

It is one of several actions by the administration that have transformed the U.S. asylum system and effectively kept out the increased number of people seeking refuge in this country. Since the start of the coronavirus crisis, federal officials have used emergency pandemic restrictions to expel most migrants at the border without even an asylum screening.

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More than 66,000 asylum seekers have fallen under the Remain in Mexico plan since it began in January of last year, including more than 25,000 with cases pending in immigration courts. Most have had to shelter in Mexican border cities where cartel and gang violence is rampant, and where it has proven nearly impossible for migrants to find U.S. lawyers to guide their cases through an unfamiliar immigration court system. Only a tiny fraction of them — 260 people in total — have won asylum.

The program was challenged by 11 asylum seekers and a group of immigrant legal service providers, including several in the Bay Area. Plaintiffs say the protocols do not provide “protection” to migrants, but rather put them in harm’s way.

“Thousands of families remain stranded in increasingly perilous conditions, where many have faced brutal violence and homelessness,” said Blaine Bookey, legal director for the San Francisco-based Center for Gender and Refugee Studies. “We will continue the fight to stop this cruelty once and for all.”

Last year, U.S. District Judge Richard Seeborg in San Francisco ruled that the policy likely violates the Immigration and Nationality Act, and other legal protections against returning immigrants to “unduly dangerous circumstances.” Again, the 9th Circuit agreed. And, again, the Supreme Court intervened to allow the policy to go forward while the case is litigated.


Legal and Political Changes Could Affect Cases

Oral arguments in the two cases will be scheduled for February at the earliest, legal analysts say. And by then, the legal and political landscape may have changed significantly. Judge Amy Coney Barrett may have been confirmed to fill the vacancy left by the death of Justice Ruth Bader Ginsburg, likely solidifying a conservative majority on the court. And the presidential election will have been decided.

But a more conservative court won’t necessarily rule in Trump’s favor, especially on the border wall funding case, said Kevin R. Johnson, dean of the UC Davis School of Law.

“If I had to guess, I’d say it’s more likely the [border wall] appropriations case will be upheld,” Johnson said. The court “may have a conservative bent, but they do respect the constitutional separation of powers framework.”

However, if Biden is elected, he could simply end the border wall construction and the "Remain in Mexico" policy, which were executive actions to begin with, and dismiss the government’s appeals to the Supreme Court, Johnson said.

“It makes all the difference who the president is,” he said. “If you wanted these cases to go away, you’d vote for a Biden-Harris ticket.”