Judges reject challenge to ‘stay in Mexico’ policy


A day when the court made major decisions on college sports and securities law, the list of commands of the judges’ private conference last week was quieter on Monday morning. The court added no new cases to its docket for the fall, but it did ask the federal government to rule on the interpretation of a federal regulation by a state Supreme Court — a decision that could put a potential successor to Justice Stephen Breyer in the spotlight. And in a separate order released later Monday morning, judges challenged a Trump-era asylum policy after the Biden administration ended the program.

The justices sought the advice of acting U.S. Solicitor General Elizabeth Prelogar in Marin Housing Authority v. Reilly. The case involves the interpretation of a regulation passed by the U.S. Department of Housing and Urban Development that defines “income” for the purposes of a federal program, known as Section 8, that provides a subsidy for help low-income families pay their rent. The specific issue before the California Supreme Court in the decision below, and on which the federal government has now been asked to rule, is whether the compensation a parent receives for caring for their adult daughter critically disability must be included as “income” when a public housing authority calculates a Section 8 subsidy. A narrowly divided California Supreme Court ruled that compensation should be excluded from income. The court’s chief justice, Tani Cantil-Sakauye, wrote a dissenting opinion that was joined by Justice Leondra Kruger, who is often mentioned as one of President Joe Biden’s Supreme Court shortlists.

Separately, in Mayorkas c. Innovation Law Lab, Supreme Court dismissed challenge to Trump administration’s “stay in Mexico” policy, which allowed the Department of Homeland Security to require non-Mexican immigrants seeking asylum at the southern border to remain in Mexico pending US hearings. The dismissal was not a surprise. In October 2020, the court agreed to weigh in on the policy, but in February the Biden administration asked the justices to remove the case from the February hearing schedule.

In a brief submitted in June, Prelogar urged the court to overturn the lower court’s decision and return the case with instructions to dismiss the 2019 district court order restraining the federal government from implementing the policy. Prelogar argued that the case was moot — that is, it was no longer a live controversy — because Homeland Security Secretary Alejandro Mayorkas terminated the “stay in Mexico” policy on June 1. In an unsigned order, the judges did just that. The order was also quashed as moot a request from a group of Statesled by Texas, to join the lawsuit to defend the policy in place of the Biden administration.

The judges will meet again for a private conference on Thursday, June 24 – the last regularly scheduled conference before the judges’ summer recess. The court is expected to issue orders from that conference on Monday, June 28, and will almost certainly issue a series of additional orders after its final day of term opinion.

This article has been originally published at Howe on the Court.


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