The Supreme Court gave Trump leeway on executive actions. Biden wants the same treatment
By Joan Biskupic, CNN legal analyst & Supreme Court biographer
The Biden administration faces two major confrontations with the Supreme Court this week, as the justices weigh requests related to the Covid moratorium on evictions and the termination of a Trump practice that forced migrants seeking US asylum to stay in Mexico until their claims could be heard.
Late Tuesday night, it lost the latter, as a divided court refused a Biden request to lift a lower court order that requires the new administration to revive former President Donald Trump’s “Remain in Mexico” policy for asylum seekers.
Dividing along familiar ideological lines, the justices denied President Joe Biden the regard that Trump’s immigration policies regularly received.
The case offers an early window into emerging conflicts between the conservative court under Chief Justice John Roberts and the Democratic Biden administration. The three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, said in the Tuesday night order that they would have granted the Biden request.
The overriding question in the asylum case and the pending dispute over the eviction moratorium, as well as other controversies on the horizon, is how much deference the 6-3 conservative-liberal court majority will afford the current President. Republican-led states and conservative organizations have been challenging a swath of Biden policies. Such disputes over immigration, the environment, and tax and economic policy could become a staple of the Supreme Court’s docket.
During Trump’s presidency, the court blocked lower court orders against immigration and asylum restrictions and Trump’s diversion of federal funds to build a wall at the border with Mexico. Biden Justice Department lawyers want the same deference to the executive branch that Trump enjoyed.
“In recent years, this Court has repeatedly stayed broad lower court injunctions against Executive Branch policies addressing matters of immigration, foreign policy, and migration management. It should do the same here,” acting US Solicitor General Brian Fletcher wrote as he urged the justices to suspend the lower court order that would force Biden to reinstate Trump’s “Remain in Mexico” practice.
The second pending case, arising from a lawsuit by landlords, sets up a separate face-off with the Biden Justice Department because it arguably flouts a June 29 court order and concurrence from Justice Brett Kavanaugh signaling the conservative majority believes a pandemic-related eviction moratorium may be imposed only by Congress.
The new US Centers for Disease Control and Prevention eviction moratorium, to protect renters facing economic hardship and at risk of spreading the virus if forced to move, would run until October 3. It covers fewer counties than the first but still applies to much of the US, places with high levels of virus transmission.
Fletcher emphasized in his filing Monday backing the new moratorium that a surge in Covid cases since late June caused by the Delta variant necessitated executive action.
“The trajectory of the pandemic has since changed — unexpectedly, dramatically, and for the worse,” Fletcher wrote, noting that as of August 19, the seven-day average of daily new cases was 130,926, nearly a ten-fold increase over the rate when the Supreme Court first acted in the dispute known as Alabama Association of Realtors v. Department of Health and Human Services.
Fletcher again cited the deference the Supreme Court has given in the past to public health experts.
“In addressing the many emergency applications that have arisen out of the present pandemic, the Court and individual Justices have often recognized that they should respect the judgments of policymakers charged with protecting the public health,” he wrote.
Through the four years of Trump litigation, the Republican-appointed conservative justices and Democratic-appointed liberal justices routinely divided in emergency cases testing whether a policy could be enforced while the merits of a dispute wended through lower courts.
Led by Roberts, the conservative majority routinely prevailed and contested Trump policies were enforced, over orders from lower court judges attempting to block the new administration practices.
Last January, for example, just before Trump left office, the court dissolved a lower court injunction in an abortion drug controversy and reinstated a Trump administration rule that women prescribed mifepristone, to end a pregnancy in its early weeks, obtain the pill in person notwithstanding pandemic concerns.
Sotomayor, currently the most liberal justice, decried the conservative majority’s pattern in a 2020 case.
“It is hard to say what is more troubling,” Sotomayor wrote in a dispute over a tougher policy for green card applicants needing public assistance that lower court judges had tried to halt, “that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”
Roberts, who loathes attention on the court’s political divisions, has tried to dilute the trend that appears to favor Republican initiatives, including by voting on rare occasion with the left or triggering a succession of ideologically mixed actions within a case or series of cases.
Yet Tuesday night’s order in the “Remain in Mexico” asylum case, refusing Biden the deference that Trump often received, split the justices along the usual right and left lines.
Why this week’s SCOTUS actions matter
These pending disputes over the revised migrant practice, brought by Texas, and the eviction moratorium, brought by landlords, come as the Biden administration will soon experience its first full term at the Supreme Court.
In the Supreme Court session that ended in June, the Biden administration abandoned previously filed Trump arguments and switched the government’s position in several cases.
The high court majority generally adopted Trump arguments over those advanced by the Biden team, including as the justices sided with challengers to two separate California laws, allowing union organizing on agricultural land and requiring charitable organizations to disclose major contributors. The court also rejected Biden arguments that low-level crack cocaine offenders were eligible for reduced sentences under the First Step Act.
The federal government is represented at the high court by the US solicitor general. Biden recently nominated Elizabeth Prelogar to the post. A former assistant solicitor general and a counsel on Robert Mueller’s Russia investigation, Prelogar served as the acting US solicitor general earlier this year.
In the 2021-22 session, which begins in October, the office of the SG, as it is known, will shepherd the Biden legal agenda on multiple pending cases, including over fundamental abortion rights and gun control regulation under the Second Amendment.
The justices have separately asked for the administration’s views of Harvard’s admissions practices that include consideration of applicants’ races, currently being challenged by a group that says Harvard is violating federal law and disadvantaging Asian American students.
All indications are that Biden’s legal team will back Harvard, the opposite stance of the Trump administration.
And when the time comes later this fall for Biden lawyers to weigh in regarding abortion rights and gun control, they are certain to reverse the Trump pattern of opposition on those issues. How that might alter the course of the Roberts court conservatism — or make barely a difference — will be seen during the 2021-22 session, through next summer.
This story has been updated with further developments Tuesday.
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