The Volokh Conspiracy
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On Tuesday, the Supreme Court issued a 5-4 ruling that is likely to have the effect of perpetuating Title 42 "public health" expulsions of migrants at the US southern border. The decision stays a November DC district court ruling holding that the policy was illegal because it violates the Administrative Procedure Act, until the Supreme Court has a chance to consider the case more fully. Since March 2020, over 2 million migrants have been expelled under the Title 42 policy, including many who would otherwise have had the right to stay in the US long enough to apply for asylum. That has resulted in great suffering among migrants expelled to areas where they are threatened with violence, persecution, and other dangers.
The Supreme Court is not going to consider the case on the merits. Rather, it will only review the December 16 decision of the US Court of Appeals for the DC Circuit that prevented a group of GOP-controlled states from intervening in the case after the Biden Administration appeared ready to end the Title 42 policy rather than continue to defend it.
Title 42 expulsions were begun in March 2020 by the Trump Administration, and perpetuated in modified form by the Biden Administration until it tried to end them in May of this year, only to be stopped by a federal district court ruling in Texas, holding that the administration ended the policy without going through proper procedures under the APA. Had the Supreme Court allowed the District of DC ruling to stand, it would have taken precedence over the Texas decision, because the former holds that the Title 42 expulsions were illegal to begin with. If so, it doesn't matter if the policy were ended in a way that violates the APA, because it was never valid in the first place, and thus was not protected by the APA's rules.
Tuesday's ruling doesn't actually require the continuation of the Title 42 expulsions. Indeed, it specifically states that it "does not prevent the federal government from taking any action with respect to that policy," and that "[t]he Court's review on certiorari is limited to the question of intervention" by the state governments.
But because the Court has stayed the District of DC ruling in the meantime, it has the effect of maintaining the Texas district court injunction, which in turn bars the Biden Administration from ending the policy—at least until such time as the latter ruling is reversed by Fifth Circuit appellate court or by the Supreme Court.
Justice Neil Gorsuch joined the three liberal justices in dissenting from the stay ruling. Gorsuch authored a dissent joined by Justice Ketanji Brown Jackson thatcompelling explains why the majority was wrong:
Reasonable minds can disagree about the merits of the D.C. Circuit's intervention ruling. But that case-specific decision is not of special importance in its own right and would not normally warrant expedited review. The D. C. Circuit's intervention ruling takes on whatever salience it has only because of its presence in a larger underlying dispute about the Title 42 orders. And on that score, it is unclear what we might accomplish. Even if at the end of it all we find that the States are permitted to intervene, and even if the States manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed. In April 2022, the federal government terminated the Title 42 orders after determining that emergency immigration restrictions were no longer necessary or appropriate to address COVID–19…. 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….
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… Today, the Court supplies just such an order. For my part, I do not discount the States' concerns…. 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.
Gorsuch is exactly right on this. The attempt to perpetuate Title 42 expulsions is an attempt to use Covid emergency powers in order to pursue an unrelated policy agenda: in this case imposing severe immigration restrictions. It's exactly the sort of abuse of emergency authority that conservatives rightly condemned in the case of the CDC eviction moratorium (which used a similar provision of the same 1944 law as that which the Title 42 expulsions are based on), and Biden's attempt to use the Covid emergency to justify a massive loan forgiveness.
Indeed, the situation here is even worse than Gorsuch suggests. As I describe in detail in an article about the Title 42 litigation, public health experts recognized early on that the expulsions were doing little or nothing to prevent Covid from entering the US. The Trump and Biden administrations began and perpetuated the policy for political reasons, using public health largely as a pretext. For Trump, it was part of a more general effort to curb immigration as much as possible; for Biden, it was a way to reduce perceptions of disorder at the border.
In reality, the main cause of danger and disorder at the border is the extreme difficult of entering the country legally, which forces many desperate migrants to try illegal means. Perpetuating Title 42 expulsions won't fix that problem, and may make it even more severe, by making legal entry even harder than it would be otherwise.
But even if indefinite summary expulsions are the appropriate border policy, Gorsuch is right to emphasize that the Court cannot order their perpetuation under Title 42. At the very least, any such permanent policy must be authorized by Congress, not shoe-horned into a public health statute by courts.
I don't have a strong opinion on the issue of whether the states should be allowed to intervene in the case. But even if they should be, the Court could consider that issue without staying the district court ruling.
In addition, the DC Circuit ruling denying intervention seems sound:
"Timeliness is an important consideration" to be determined from all the circumstances, Cameron, 142 S. Ct. at 1012, "especially weighing the factor of time elapsed since the inception of the suit," Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001)….
In this case, the inordinate and unexplained untimeliness of the States' motion to
intervene on appeal weighs decisively against intervention. First, although this litigation has been pending for almost two years, the States never sought to intervene in the district court until almost a week after the district court granted plaintiffs' partial summary judgment motion and vacated the federal government's Title 42 policy…
Second, long before now, the States have known that their interests in the
defense and perpetuation of the Title 42 policy had already diverged or likely would
diverge from those of the federal government's should the policy be struck down…..
Despite that "palpable" divergence in interests that already existed in October
2021, neither Texas nor any of the States here moved to intervene in district court on
remand from this court or during the summary judgment proceedings.
For those keeping track, one of the three judges on the DC Circuit panel denying intervention was conservative Trump appointee Justin Walker. So it isn't a case of liberal judges blocking intervention by conservative states for ideological reasons. However, I am no expert on the legal rules of intervention, so I admit I could be missing something when it comes that issue.
I am much more confident in concluding that there was no good reason for the Supreme Court to stay the trial court decision in this case merely to consider the issue of intervention.
I reviewed the earlier history of the Title 42 expulsions and litigation in detail in my recent symposium article on the subject. As I explain there, the policy never had proper congressional authorization once the Covid-19 virus became established in the US, and the Trump and Biden administrations' justifications for it raises serious nondelegation problems, and go against the Supreme Court's "major questions" precedents. In that respect, they are similar to the arguments the Court rejected in the eviction moratorium ruling, and the OSHA vaccination mandate case.