Biden administration asks Supreme Court to pause two Trump-era immigration cases

Both cases are set for oral argument in the coming weeks

The Supreme Court is seen on Thursday, Jan. 7.  (Bill Clark/CQ Roll Call file photo)
The Supreme Court is seen on Thursday, Jan. 7. (Bill Clark/CQ Roll Call file photo)
Posted February 1, 2021 at 5:12pm

The Biden administration on Monday asked the Supreme Court to halt work in two cases related to the previous administration’s contentious U.S.-Mexico border policies, the first major legal fallout from expected swings in government policies after the 2020 presidential election.

Both cases — one that challenges how the Trump administration transferred $2.5 billion in Defense Department funds to build a border wall, and another that challenges a 2018 policy that keeps immigrants who illegally cross the border in Mexico while their removal proceedings are pending — are set for oral argument before the justices in the coming weeks.

But President Joe Biden's administration ordered a halt to both of those policies since his Jan. 20 inauguration, and his administration asked the Supreme Court to take the cases off the schedule and pause further filing deadlines.

In the case about the border wall set for oral argument Feb. 22, Biden also ordered an assessment of the legality of the funding and contracting for the wall, acting Solicitor General Elizabeth Prelogar wrote in a motion filed Monday.

“It would therefore be appropriate for the Court to hold further proceedings in this case in abeyance to allow for the completion of the process that the President has directed,” Prelogar wrote.

The justices had agreed to decide whether the Sierra Club has the legal right to challenge the transfer of the funds in court, and if so, whether the then-acting Defense secretary exceeded the administration’s authority under a fiscal 2019 appropriations law.

The case, closely watched by House Democrats who filed a similar legal challenge to stop border wall spending, could be wiped out with the change in policy.

In the challenge to the so-called “remain in Mexico” policy set for oral argument on March 1, the Department of Homeland Security on Jan. 21 halted any new enrollments pending a review of the program.

The policy, known as Migrant Protection Protocols, forced migrants to wait out their U.S. court cases in Mexico, often in dangerous border communities.

In both Supreme Court cases, the other lawyers in the case have agreed to cancel the oral arguments and pause the schedule for legal filings, the Biden administration told the justices.