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The U.S. Supreme Court on Thursday dismissed a suit brought by a group of Republican attorneys general, who sought to keep in place the emergency Title 42 measure implemented by the Trump administration, which expired last week.
The high court’s Thursday ruling (pdf) ended Title 42, the emergency measure that the Trump administration implemented in March 2020 as a reaction to the COVID-19 pandemic, and concluded a legal saga between Republican states and the Biden administration that lasted months before the measure expired on May 11.
Both the Trump and Biden administrations used Title 42 to expel illegal immigrants.
Legal Battle on Border Policy
The case goes back to January 2021, when a group of illegal immigrants seeking asylum in the United States filed a class-action lawsuit in the D.C. District Court against the Biden administration, arguing that the government did not have the authority to expel them under Title 42.
In November 2022, U.S. District Court Judge Emmet Sullivan ruled (pdf) in favor of the illegal immigrants, declaring Title 42 illegal, as well as all memos issued by the Centers for Disease Control and Prevention or the U.S. Department of Health and Human Services “suspending the right to introduce certain persons into the United States.”
But Sullivan’s ruling clashed with a May 2022 ruling (pdf) by the District Court for the Western District of Louisiana, which sided with a group of Republican states—against the Biden administration—in issuing a nationwide injunction allowing Title 42 to stay.
Following Sullivan’s ruling, the states went to intervene in the Washington case and sought to defend Title 42 in the D.C. Court of Appeals. After the appeals court denied the states’ motion to intervene, the states then submitted an emergency appeal to the Supreme Court.
The high court, in a 5–4 vote, granted (pdf) the states’ request in December 2022 and allowed Title 42 to remain in effect.
The high court’s Thursday ruling removed the case from the court’s calendar and instructed a lower court in Washington, D.C. to dismiss the case as moot.
The one-paragraph unsigned order did not go into the justices’ reasoning for dismissing the case as moot, but shadowed closely a brief filed in February by Elizabeth B. Prelogar, the lawyer representing the U.S. government in the Supreme Court. Prelogar wrote in that brief (pdf) that “absent other relevant developments, the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot this case.” The court signaled its Thursday move when it canceled oral arguments on this case, originally set for March 1, days after Prelogar’s February brief.
Justice Ketanji Brown Jackson wrote that she would have dismissed the Supreme Court’s December 2022 decision allowing Title 42 to stay in place as “improvidently granted,” indicating that she thought the court made a mistake in granting a review of the states’ case.
In a seven-page statement attached to the court’s one-paragraph order, Justice Neil Gorsuch echoed Jackson’s note and that the high court “took a serious misstep when it effectively allowed” the states—which he called “nonparties”—“to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one.”
“The current border crisis is not a COVID crisis,” Gorsuch wrote. “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.”
‘The Greatest Intrusions on Civil Liberties’
Gorsuch did not stop at commenting on the case at hand, and instead took the opportunity to reflect on a broader problem that he sees threatens to leave Americans with a “shell of democracy”: the expansion of executive power during the pandemic.
“Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on,” Gorsuch wrote, adding that violators were threatened with civil and criminal sanctions.
“Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed,” he wrote on a side note.
The result of these executive actions beginning in March 2020, Gorsuch wrote, may amount to “the greatest intrusions on civil liberties in the peacetime history of this country.”
He lamented the apparent inaction of the legislative branch—state legislatures and Congress—in response to these executive decrees and how the judicial branch, which was “bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them.”
“In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation,” Gorsuch added.
The conservative justice warned that an important lesson from the pandemic—and the government’s reaction—is that “fear and the desire for safety are powerful forces,” and, citing Aristotle, noted that “even the ancients warned that democracies can degenerate toward autocracy in the face of fear.”
“Make no mistake—decisive executive action is sometimes necessary and appropriate,” he added. “But if emergency decrees promise to solve some problems, they threaten to generate others.
“And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”
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