The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

SCOTUS Takes a Border Wall Case

Among today's cert grants were a case concerning the border wall and another on the Trump Administration's Migrant Protection Protocols


The Supreme Court granted certiorari in three cases today: Trump v. Sierra Club, Wolf v. Innovation Law Lab, and Lange v. California. The Court took no action (as yet) on a pending petitions challenging election rules in Pennsylvania.

Trump v. Sierra Club is the most prominent of today's grants, as it concerns the lawfulness of border wall construction. Specifically, the case concerns whether the plaintiffs have a cause of action to challenge the Defense Department's reallocation of funds to pay for construction of a wall along the border with Mexico and, if so, whether the Defense Department's actions were lawful. This grant is not particularly surprising. Judge Collins' dissent on the Ninth Circuit panel below was a de facto cert petition.

Wolf v. Innovation Law Lab concerns a challenge to the Trump Administration's Migrant Protection Protocols, aka the "remain in Mexico" policy under which asylum seekers can be forced to wait outside the country while their asylum requests are pending. At issue in this case is not only whether the Trump policy is consistent with the relevant statutes, but also whether this policy change was required to go through notice and comment under the Administrative Procedure Act and whether the district court's order of a nationwide injunction was proper. Whatever the Court decides on the merits, this case presents another opportunity for the Court to resolve the lingering dispute over universal injunctions. (Note: It's interesting to think that if the Court constrains so-called nationwide or universal injunctions, a Biden Administration may be the primary beneficiary – much like the Obama Administration was the immediate beneficiary of the relaxed approach to agency reversals adopted in Fox v. FCC.]

[For more on national injunction aspect of this case, see Sam Bray's post here.]

The final grant, Lange v. Californiahas the feel of a case granted for error-correction purposes. The question presented is:

Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.

It is hard to see how the Court answers this question in the affirmative. Unless I am missing something, it seems like this could be 7-2, 8-1, or even unanimous.

Also today, Justice Thomas dissented from the denial of certiorari in Rogers County Board of Tax Roll Corrections v. Video Gaming Technologies, a case concerning the implications of McGirt v. Oklahoma for state taxation of video gaming equipment owned by non-Indians but located on tribal lands. The Court may not have been ready for this case, but it will have to consider the fallout from McGirt in due course.

Finally, Justice Gorsuch wrote an opinion respecting the denial of certiorari in Bovat v. Vermont, an interesting Fourth Amendment case out of Vermont. Joined by Justices Kagan and Sotomayor, Justice Gorsuch expressed concerns about how "knock and talk" investigations often "test[] the boundaries of consent" and evade Fourth Amendment limits on police searches and made clear his belief that the Vermont Supreme Court had erred below. Why was this only an opinion respecting denial instead of a dissent? One possibility is that the justices were unsure there would be five votes for reversal without Justice Ginsburg, so they did not push too hard for a grant.

[Note: Post edited to add a little more detail on the MPP.]