The Supreme Court this week granted 19 states’ request to temporarily block a lower court ruling that ordered the Biden administration to end Title 42, and agreed to expedite review of the Biden administration’s effort to eliminate the use of an alleged continuing pandemic emergency to justify border officials skipping asylum processing details to quickly expel illegal immigrants. The end of Title 42 will create “a surge of [illegal immigrants] at America’s southern border,” says The Hill. That’s amusing, since there is already such a surge and has been since Joe Biden threw out a virtual welcome mat for those wanting to take the benefits of U.S. residents regardless of what our laws say. The proper phrasing would be “even greater surge than the unacceptable and irresponsible level being permitted already.”
U.S. District Judge Emmet Sullivan had directed the Biden administration to end the policy this month, but the Court’s unsigned order put the ruling on hold and effectively kept the so-called Title 42 policy in place for now. This pleased opponents of the ongoing efforts by Democrats to allow as many illicit immigrants into the U.S. as possible, but many were surprised that the six Justice conservative majority didn’t follow the desires of Republican state attorneys-general en masse. The three-justice progressive minority dissented from the opinion in lock-step, as we would expect, and Justice Neil Gorsuch dissented from his conservative colleagues, based on law, principle, integrity and the Constitution. He wrote in part,
The States may question whether the government followed the right administrative steps before issuing this decision…But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life….The only plausible reason for stepping in at this stage that I can discern has to do with the States’ second request. The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. The only means left to mitigate the crisis, the States suggest, is an order from this Court directing the federal government to continue its COVID-era Title 42 policies as long as possible…For my part, I do not discount the States’ concerns. Even the federal government acknowledges “that the end of the Title 42 orders will likely have disruptive consequences.”
But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.
Serving as “policy-makers of last resort” is how the Supreme Court has exceeded its Constitutional limitations and gotten itself (and the nation) in trouble so many times in the past (See: Roe v. Wade).
The Biden administration deserved to lose in this matter on the basis of hypocrisy alone, but that’s not a legal principle. It has been happy to disingenuously use pandemic emergency powers when they served cynical partisan purposes (like fishing for votes before the mid-terms), exploiting the virus to suspend the payment of student loans and the collection of past-due rent. Allowing a wave of illegal immigrants, however, panders to different interests, so while a pandemic emergency exists regarding deadbeat college grads and freeloading tenants, the Democratic Party says “Pandemic? What pandemic?” when it comes to the border.
As Gorsuch writes, however, the immigration mess is Congress’s problem to solve, not the Supreme Court’s. The other five conservatives ignored conservative judicial principles by blocking the end of Title 42, because they didn’t want the likely results of doing so—and that’s policy-making, not legal oversight.
I had already started this post when I found myself wondering if Prof. Turley has weighed in. Checking his blog, I was pleased to find that he had, and that, like Ethics Alarms, he salutes Gorsuch’s adherence to the principles that ought to always guide the Court. Turley writes, “Gorsuch recognizes that the Biden Administration’s opposition to Title 42 may fuel the flood of illegal immigration across the Southern border. However, he is bound by oath to apply the law, not tailor the law to fit political or policy demands.”