Editorial: The Supreme Court is taking up two border cases we hope the election makes moot

Government contractors erect a section of Pentagon-funded border wall along the Colorado River in Yuma, Ariz.
Government contractors erect a section of Pentagon-funded border wall along the Colorado River in Yuma, Ariz. The Supreme Court will hear appeals in a legal fight over funding for the wall and over the administration’s “remain in Mexico” asylum policy.
(Matt York / Associated Press)

The Supreme Court agreed Monday to take up two cases that arise from marquee immigration policies of the Trump administration. Here’s hoping that the policies will be in the dustbin of history before the court has the chance to rule on them.

The cases center on Trump’s efforts to replace and extend the wall along the U.S.-Mexico border, a central promise in his 2016 campaign, and the administration’s “remain in Mexico” Migrant Protection Protocols, which require asylum seekers arriving at said border to stay on the south side as they wait for their turn to make an asylum request.

Both cases exemplify the administration’s bullheaded approach to governance and its deep antipathy toward immigration, sanctioned or unsanctioned.


The wall case stems from Congress’ refusal to approve $6 billion that Trump demanded late in 2018 for the border wall project, an impasse that led to a 35-day partial shutdown of the federal government. Trump then declared a national emergency at the border — without offering persuasive evidence that one existed — and moved more than $6 billion earmarked for military construction projects and narcotics interdiction to pay for wall building. (He has since sought to move more money.)

Environmental and immigration rights groups sued, but the Supreme Court ruled this summer that the administration could continue to spend the money as the lawsuit progressed, even though the damage caused by the wall work would be hard to reverse if the court ultimately decided the funding shift was unlawful. Much like trying to unring a bell, it’s not easy to unspend money and unbuild a wall.

The issue here is about more than the wall, however. If the court allows the president to usurp Congress’ constitutional authority to control the federal purse by treating a political dispute as a national emergency, it would set an awful precedent. Any president who fails at the politics of negotiating with Congress would be able to simply concoct an emergency and do what he or she wants. Republicans might be silent over that aspect of the case now, but it’s easy to imagine them wailing if a Democratic president demanded the same deference.

In the second case, the administration maintains that a surge in asylum seekers — mostly Central American children with parents or guardians — at the border over the last couple of years overwhelmed the government’s ability to process the claims. This surge, the administration says, forced it to institute a policy requiring the aspiring immigrants to wait in Mexico — often in camps or within violent border towns where many have been kidnapped, raped and murdered — while their cases were considered. But federal and international laws don’t allow the U.S. to send people to places where they face persecution and torture.

Critics of the policy argue credibly that U.S. immigration laws allows migrants to remain in the U.S. as they seek asylum. In fact, forcing applicants to wait in another country significantly harms their ability to make their case for admission, since it makes it more difficult to consult with attorneys and to keep their court dates, contrary to Congress’ intent when it adopted asylum laws. (As it is, the asylum system has been effectively shut down under a Centers for Disease Control order suspending admission of people who have been in coronavirus hotspots.)

With Judge Amy Coney Barrett’s looming elevation to the high court — the Senate is likely to approve the nomination in the next week or so — it’s unclear how the justices would rule on these cases. So in one regard it’s good that the court isn’t slated to hear arguments anytime soon. By the time it does, we hope a new administration will have reversed these policies, making the cases moot and restoring some semblance of humanity and common sense to immigration enforcement.