WASHINGTON — The Biden administration on Monday asked the Supreme Court to cancel upcoming arguments on two cases important to former President Donald Trump: a funding dispute over the border wall and a policy requiring asylum seekers to wait in Mexico while their claims are considered.
Acting Solicitor General Elizabeth Prelogar told the court that Biden has stopped construction of the wall and announced a review of the asylum program, called the Migrant Protection Protocols (MPP).
Until those reviews are completed, she said, the court should suspend consideration of the lawsuits. The border wall case, now called Biden v. Sierra Club, is scheduled for argument Feb. 22. The immigration case is now called Pekoske v. Innovation Law Lab – David Pekoske is acting Homeland Security secretary – and is scheduled for March 1.
The request from Prelogar was expected – when the cases were granted last October, they seemed likely to become moot if Biden was elected because he was opposed to both. But it is the first official action at the Supreme Court to show the effects of the regime change.
The American Civil Liberties Union, which represents groups that sued the Trump administration in both cases, agreed with the request, Prelogar told the court.
The organization in a statement called on the new administration to do more than simply shut off funding for the wall.
“It’s a good start that the Biden administration is not rushing to defend Trump’s illegal wall in court, but just hitting the brakes isn’t enough. Trump’s wall devastated border communities, the environment, and tribal sites,” said Dror Ladin, senior staff attorney with the ACLU’s National Security Project.
“It’s time for the Biden administration to step up for border communities, and commit to mitigating environmental damage and tearing down the wall.”
The Trump administration had asked the court to intervene in both matters because of decisions against it in lower courts. Also in both cases, the justices had allowed the administration to proceed with its plans while the merits of the issues were litigated.
In July, the court rejected a last-ditch effort from environmentalists to stop ongoing construction of parts of the border wall. The previous month, a panel of the U.S. Court of Appeals for the 9th Circuit ruled that it was unlawful for the administration to use funds intended for the Defense Department on the wall instead.
Trump, who ran for office in 2016 promising that Mexico would pay for his plans to expand the border wall, obtained more than $15 billion in federal funds for his signature project, including $5 billion provided by Congress through conventional appropriations. The controversy was over the president tapping into Pentagon accounts for the remaining $10 billion, including the $2.5 billion transfer in 2019 that the 9th Circuit said was unlawful.
In 2019, the Supreme Court in an emergency order allowed the administration to proceed with the transfers and contracts for construction, even though House Democrats, affected states and environmental groups said that violated the will of Congress, which withheld the funds from the administration.
On his first day in office, Biden rescinded the emergency Trump had declared and said constructions on the border wall would stop.
In the other case, the Supreme Court in March granted the Trump administration’s emergency request to let it enforce its “Remain in Mexico” policy. It allows the Department of Homeland Security to return immigrants who cross at the southern border to Mexico while they wait for their claims to be heard.
The protocol, which took effect in January 2019, was a fundamental change to previous U.S. policy and was intended to protect against massive migration from Central America.
A federal judge blocked the initiative with a nationwide injunction, saying the policy contradicted the text of the Immigration and Nationality Act. A 9th Circuit panel upheld part of the ruling.
Biden’s Department of Homeland Security has stopped implementation of the protocols.
“Given DHS’s suspension of new enrollments in MPP and its current review of the program, it would be appropriate for the court to hold further proceedings in this case in abeyance to allow for the completion of that review,” Prelogar wrote.
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