The Biden administration is asking the Supreme Court to delay consideration of two major cases that are scheduled for oral argument in the coming weeks. One involves funding for former President Trump’s border wall construction, and the other, the so-called “remain in Mexico” policy.
If the Supreme Court agrees to postpone consideration of the cases, as expected, at some later date they very likely will be pronounced dead as a legal matter.
The Supreme Court had allowed both Trump administration policies to continue, temporarily overriding decisions by lower courts. But President Biden has already issued executive orders pausing both the erection of the border wall, and the “remain in Mexico” policy, under which some 68,000 asylum seekers and others who crossed the border without authorization, were sent back to Mexico and told to apply for immigration permits from there.
Acting Solicitor General Elizabeth Prelogar on Monday filed motions asking the High Court to postpone consideration of both cases in light of the Biden administration’s reconsideration of the policies at issue in the two cases.
“In light of … recent developments,” Prelogar “respectfully” requested that the court “hold further briefing in abeyance and remove” them from the February oral argument calendar. That could well mean that the two Trump policies are, for all practical purposes, dead.
The question in the border wall cases was whether Trump could get around Congress’ refusal to authorize money for the border wall by using money appropriated for the Defense Department.
As for the “remain in Mexico case,” it tests the legality of the Trump policy that automatically returned to Mexico asylum seekers and other immigrants from third countries who enter the U.S. by crossing the U.S./Mexico border. That policy, however, was suspended by the acting Department of Homeland Security director within hours of Biden becoming president. In suspending the Trump policy, the acting director noted that because of the COVID-19 pandemic, for now, non-essential travel restrictions would remain in place.
As in the border wall case, the Biden administration’s Prelogar asked the court to postpone consideration of the case in order to allow the Biden administration to review the Trump policies and decide what changes it plans to make.