Predicting future Supreme Court immigration decisions on the verge of an election

On Monday morning, the Supreme Court announced its decision to review two cases arising from the Trump administration’s attempt to slow immigration from Mexico. 

The first, Trump v. Sierra Club, has been on the radar since summer of 2019 and relates to the government’s ability to spend money on and undertake construction of the fabled “big, beautiful wall” (40 miles of it anyway) while litigation is underway. The second case involves Wolf v. Innovation Law Lab, and sees the government petitioning the Supreme Court to review the Ninth Circuit’s ruling that the administration’s Migrant Protection Protocols (MPP) — otherwise known as the “Remain in Mexico Ruling” — is inconsistent with both federal immigration and international law.

There are a variety of questions that both of these cases raise, and not only in regard to the national posture towards immigration moving forward. Trump v. Sierra Club and Wolf v. Innovation Law Lab may be an early indication of how the Supreme Court will attempt to reconcile the unstoppable force that is the will of the executive branch with the immovable object that is the legislative branch and House Democrats. The lesson may have less to do with immigration law or even the reading of the tea leaves of past decisions in order to predict the upcoming Supreme Court term that precedes the introduction of every new justice, and ultimately highlight the value of legislative compromise in establishing long term policy decisions.

It’s important to note that both of the cases, which are scheduled for review in February 2021, may not ever reach the Supreme Court. A Biden administration would almost surely mean the end of any programs that deal with the spending unallocated money on a border wall or limit the ability of asylum seekers to remain in the U.S. while their claims await review. If that is the case, we may have to wait to learn how a newly seated Justice Amy Coney Barrett and her fellow conservatives will come down on pending immigration cases. But since it’s almost Halloween, it can’t hurt to indulge in a little crystal ball gazing.

There isn’t much to learn from Barrett’s prior decisions on immigration that would tell us how her tenure on the Supreme Court could affect the fates of the cases under review. One case, Alvarenga-Flores v. Sessions, which was before then-Judge Barrett when she was a member of the Seventh Circuit Court of Appeals in 2018, was denied for review. Writing for the majority, Barrett cited issues with credibility of the asylum seeker, supporting the finding based on the “dubious evidence” of “letters in English from his non-English-speaking parents.”  

One decision by itself does not establish a judicial philosophy. Indeed, Justice John Stevens famously evolved from a moderate appointed by President Gerald Ford to a stalwart of the Supreme Court’s liberal wing in the later years of his time on the bench. But one thing is clear — a future Justice Barrett may view the fear claimed by young men purportedly fleeing gang violence simply as a canard invented to cross the border or even a natural result of affiliation with “bad hombres” potentially haunting the southern borders of the country and definitely possessing the psyches of many conservatives. 

The result would see the policy of sending Mexican asylum seekers back over the border to await hearings continue, potentially using the twin evils of gang violence and our current pandemic as cover for a program that endangers millions and trivializes international agreements.

How the Supreme Court could rule on border wall funding, at least as it relates to congressional oversight, raises a thornier issue — the possibility that the legislative branch could be stymied by a Trump administration super powered by reelection and ideologically abetted by conservative justices. We need only look to the Justice Department to see how such an alignment may play out. Bill Barr might not have seemed like the most likely Trump ally before assuming the mantle of attorney general, but he has proven a committed lieutenant, zealously interpreting the law to serve the goals of the administration. Trump v. Sierra Club is basically a battle between government and private interest, with the Supreme Court stepping in to ostensibly separate the belligerents while effectively letting one side do what it wants because it wants to build a wall and who’s going to stop them? Ironically, the precedent it sets could lead to subtle comic irony, with adherents of free markets forced to choose between the rights of private interest versus unregulated public spending, a tragedy of Shakespearean proportions for erstwhile Reaganites navigating the rocky transition to Trump loyalists. 

As mentioned, it’s possible that none of the above comes to pass, as a Biden administration would see the end of many policies that have been enacted by presidential proclamation and executive order. And while my thoughts on a Biden immigration plan are best saved for another column, there is a salient lesson that I would share with any one of my students or associates: legacy requires consensus, and consensus requires compromise. 

A wall or a policy supported by fiat will fall when the executive branch changes. Regardless of who is in office in January 2021, long-lasting, sensible change to immigration will never come until Congress and the White House, with the blessing of the Supreme Court, stops telling the American public ghost stories to scare them into picking a name on a ballot and starts making law. Until, it’s the same old tricks without any of the treats.

Michael Wildes is an immigration lawyer and the managing partner of Wildes & Weinberg, PC. He is a former federal prosecutor; an adjunct professor of Immigration Law at the Benjamin N. Cardozo School of Law and the author of “Safe Haven in America: Battles to Open the Golden Door. Wildes is also the mayor of Englewood, New Jersey (D-N.J.).