The Volokh Conspiracy
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Is Arizona v. Mayorkas Moot?
The Biden Administration suggests that the Title 42 case before the Supreme Court will be moot before it is decided.
The Supreme Court is scheduled to hear Arizona v. Mayorkas on March 1. The question before the Court is whether states can intervene to defend maintenance of the Title 42 policy barring entry of some noncitizens entering the country through Canada or Mexico. The Biden Administration has sought to rescind this policy, and a district court in D.C. held that the use of Title 42 to limit entry into the nation was unlawful. Arizona v. Mayorkas arises from the efforts of some states to defend the Title 42 order and challenge this decision. A separate challenge to the Biden Administration's descision to rescind the order is currently pending in the U.S. Court of Appeals for the Fifth Circuit.
Yesterday the Biden Adminsitration filed its merits brief in Arizona v. Mayorkas, in which the Solicitor General suggests that the case will become moot before it is decided because the Biden Administration has announced that the COVID-19 emergency will end in May. From the brief:
Since this Court's grant of certiorari, Congress has considered legislation that would immediately terminate the current public health emergency. In response, the government announced for the first time its intent to allow that emergency to expire on May 11, 2023. 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 government has also recently announced its intent to adopt new Title 8 policies to address the situation at the border once the Title 42 orders end. . . .
The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render this case moot: Because the Title 42 order would have " 'expired by its own terms,' " this suit seeking only prospective relief would "no longer present[] a 'live case or controversy.'" Trump v. International Refugee Assistance, 138 S. Ct. 353, 353 (2017) (citation omitted) (quoting Burke v. Barnes, 479 U.S. 361, 363 (1987)). In that event, the government will ask the court of appeals to vacate the district court's judgment and remand with instructions to dismiss private respondents' suit as moot. See United States v. Munsingwear, 340 U.S. 36, 39 (1950). And because the mooting of the underlying case would also moot petitioners' attempt to intervene, it would likewise be appropriate for this Court to resolve the intervention dispute by vacating the court of appeals' order denying intervention and remanding with instructions to dismiss petitioners' motion as moot.
If the Court is looking to further shrink its already shrunken docket—perhaps to make more time to issue some more opinions—this would provide them with such an opportunity.