By Devan Cole, CNN
(CNN) — The Supreme Court on Tuesday will consider the legality of a policy championed by President Donald Trump during his first term that prevented scores of migrants arriving at the southern border from starting the process of applying for asylum.
The policy was rolled out under President Barack Obama, formalized by Trump and rescinded in 2021 under President Joe Biden, but the Justice Department has continued to defend it in court over the years. Trump’s solicitor general, D. John Sauer, recently told the justices the measure is a “critical tool for addressing border surges and preventing overcrowding at ports of entry.”
The case is one of several before the high court this session testing controversial immigration policies that Trump wants justices to approve. Next month, the nine will review an order he issued last year that sought to end birthright citizenship, as well as his efforts to end temporary deportation protections for Haitians and Syrians.
Officials have not said publicly whether they plan to revive the asylum policy, known as “metering,” which was introduced during the waning weeks of the Obama administration and fleshed out by Trump in 2018.
But the current administration’s decision to continue backing it in court underscores its desire to keep the policy as a backup avenue to stem the flow of migrants at the border as other restrictive measures face challenges in court.
“The Supreme Court isn’t supposed to decide hypothetical questions, which is why it’s weird that it agreed to take up this appeal in the first place,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
“Whether or not the Trump administration wants to restart this particular policy, the fact that it isn’t currently in effect ought to be fatal to the Supreme Court’s power to decide this case, one way or the other,” he added.
Under federal law, the government must process a migrant who presents at a port of entry and is fleeing political, racial or religious persecution in their home country. A migrant covered under that requirement is defined as someone “who is physically present in the United States or who arrives in the United States.”
But the metering policy enabled federal agents stationed at the border to turn back such asylum seekers before they ever stepped foot on US soil. The policy, which aimed to help officials manage the number of migrants seeking safe haven in recent years, gave workers at ports the flexibility to let in migrants if they determined there was “sufficient space and resources to process them.”
The question before the justices on Tuesday is relatively straightforward: Is a migrant who is stopped by federal agents on the Mexican side of the border covered under the law that requires officials to begin passing them through the asylum process?
The administration contends the answer is “no.”
“The ordinary meaning of ‘arrives in’ refers to entering a specified place, not just coming close to it. An alien who is stopped in Mexico does not arrive in the United States,” Sauer wrote in court papers. “The phrase ‘arrives in the United States’ does not even plausibly, much less clearly, cover aliens in Mexico.”
But an immigrant rights group and more than a dozen individuals who represent a class of migrants that challenged the policy have countered that the answer is an unequivocal “yes.”
“Congress’s use of the present tense” in the statute shows that lawmakers wanted the law’s “mandates to apply not only to those who have arrived, but also to those who are attempting to step over the border,” the policy’s legal foes said in written arguments submitted ahead of Tuesday’s hearing.
“If Congress wanted the law to cover only noncitizens