WASHINGTON (AP) — The Supreme Court on Monday agreed to hear two cases involving Trump administration policies at the U.S.-Mexico border: one about a policy that makes asylum-seekers wait in Mexico for U.S. court hearings and a second about the administration’s use of money to fund the border wall.
The justices will not hear either new case until 2021, and the outcome of the presidential election could make the cases go away, or at least reduce their significance as much of the “Migrant Protection Protocols” policy could be rescinded. In the border wall case, much of the money has already been spent and wall constructed.
After both policies were held illegal by lower courts, the court has allowed both policies to continue and remain in effect while challenging lawsuits play out in the courts.
The Trump administration policy known informally as “Remain in Mexico” began in January 2019. It became a key pillar of the administration’s response to an unprecedented surge of asylum-seeking families from Central American countries at the border, drawing criticism for having people wait in Mexican cities.
More than 60,000 asylum-seekers were returned to Mexico under the policy. The Justice Department estimated in late February that there were 25,000 people still waiting in Mexico for hearings in U.S. court. Those hearings were suspended because of the coronavirus pandemic.
The Trump administration told the high court in April that the “program has been extremely effective at reducing the strain on the United States’ immigration detention capacity and improving the efficient resolution of asylum applications.”
In a statement after the high court agreed to take the case, Judy Rabinovitz, an attorney for the American Civil Liberties Union, which is challenging the policy, called the policy “illegal and depraved.”
“The courts have repeatedly ruled against it, and the Supreme Court should as well,” she said.
The high court also agreed to hear the Trump administration’s appeal of a lower court ruling that it improperly diverted money to build portions of the border wall with Mexico.
The high court has previously allowed construction to continue, despite a federal appeals court ruled in June that the administration had illegally sidestepped Congress in transferring $2.5 billion in Defense Department funds.
Dissenting from a July order that allowed construction to continue, Justice Stephen Breyer wrote that the court’s action “I fear, may operate, in effect, as a final judgment.”
The case has its origins in the 35-day partial government shutdown that started in December of 2018— the shutdown ended after Congress granted approximately $1.4 billion in border wall funding, but that was far less than the $5.7 billion sought. The Trump administration then declared a national emergency to take cash from other government accounts to use to construct sections of the wall.
At the time, the money the administration identified included $2.5 billion in Defense Department money, $3.6 billion from military construction funds and $600 million from the Treasury Department’s asset forfeiture fund.
The case before the Supreme Court involves just the $2.5 billion in Defense Department funds.
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