The Volokh Conspiracy
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Supreme Court Cancels Oral Argument in Title 42 "Public Health" Expulsion Case
The move makes it more likely that Title 42 expulsions of migrants will end in the near future.
Yesterday, the Supreme Court canceled previously scheduled oral arguments in Arizona v. Mayorkas, a case involving Title 42 "public health" expulsions of migrants at the southern border. The Court didn't give a reason for the cancellation, nor did it indicate whether the arguments are going to be rescheduled. But most likely, the justices called off the oral argument because they think the case will soon become moot, thanks to the Biden Administration's plan to terminate the Covid-19 national emergency by May 11. If so, the Court's termination of the argument might pave the way for Title 42 expulsions to end in the near future.
Title 42 expulsions were instituted by Donal Trump in March 2020, for the ostensible purpose of preventing the spread of Covid to the United States, and later continued by Biden. The current version of the Centers for Disease Control order authorizing expulsions says they are scheduled to end whenever the Covid state of emergency is lifted.
The issue before the Court only involves a motion for intervention in the case filed by a group of red states who claim the Biden Administration wasn't defending Title 42 aggressively enough. The justices were not planning to consider the underlying issue of whether Title 42 expulsions are legal. But if the intervention issue is moot, it is because the same thing is true of the case as a whole.
If that really is the view of the Court, then I would expect them to soon lift their stay of the district court injunction mandating an end to Title 42 expulsions. That would require the Biden Administration to terminate the policy even before May 11.
Even if the stay isn't lifted before May, the conclusion that the Arizona v. Mayorkas is moot also implies that the same thing is true of a separate case in which a district court in Texas ruled that it was illegal for the administration to terminate the policy without going through the notice and comment process required by the Administrative Procedure Act.
I discussed the status of the two Title 42 cases and interaction between them in greater detail here and here. As explained in those previous posts, if the Supreme Court lifts the stay of the injunction against Title 42 expulsions, that one will likely take precedence over the one blocking the Administration's attempt to end the policy.
It's theoretically possible that Supreme Court just plans to reschedule the oral argument for a later date. It's also possible that the two Title 42 cases will not become moot for reasons I summarized in my last post on this topic:
The cases won't become moot until May 11. It would be unusual for the Supreme Court and the Fifth Circuit (which is handling the ruling against the effort to end expulsions) to complete all their deliberations so quickly. But they could potentially do so. The courts might also find technical reasons to conclude that one or both of these cases remain live controversies….
In addition, the Administration could potentially decide to extend the Covid emergency again…. For a long time, Biden has been playing a kind of double game with Title 42 expulsions, simultaneously claiming to want to end them, yet also continuing to defend them in court and even expand their use. As with Trump before him, Biden's use of Title 42 expulsions has been guided far more by political considerations than scientific ones. It's possible that the Administration will reverse course again, if it sees some advantage in doing so.
Despite these caveats, I think the most likely scenario is that the cases will indeed become moot, and Title 42 expulsions will likely end by May 11, or perhaps even before that time. Yesterday's announcement makes that even more probable than before. Amng other things, the cancellation of the Arizona v. Mayorkas oral argument makes it even less likely that the Supreme Court will decide that case before May 11.
In my view, Title 42 expulsions were illegal from early on, once it became clear that Covid-19 was established in the United States. Trump and Biden deserve severe censure for continuing this illegal and extraordinarily harmful policy long past the point where it was clear it has no real public health benefits.
I would have preferred for the courts to simply rule the policy is illegal. But mooting out the cases involving the policy may be preferable to continuing the litigation for many more months, during which time expulsions might have continued.
We will likely soon have a more definitive resolution of the mootness question. But the cancellation of the oral argument is a strong indication that the Supreme Court is moving in the direction of embracing the Biden Administration's position that these cases are going to become moot by May 11.
