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Policy Aside, Covid No Longer Justifies Title 42

It’s understandable that 19 states want to prevent the Biden administration from ending the Trump-era Title 42 Covid emergency immigration expulsions of people who are certainly eligible to apply for asylum and may very well prevail. And there is a pretty good chance that the Biden administration doesn’t so much want to end Title 42 expulsions, which would relieve the pressure to some extent at the border from cities and states dealing with the massive influx of immigrants in need of food, housing and care.

But it’s politically untenable for Biden not to do so, given his base of support, even if the calls for compassion conflict with the physical realities of far more bodies than beds. So Biden had to end the program in April 2022, even though there is no plan for dealing with the consequences, which fall heaviest on southern border states. Red states.

On petition for a stay of the D.C. Circuit’s order denying the intervention of the 19 states, the Supreme Court ruled.

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.

Many will argue what a great thing this decision is for the Republican-controlled border states that bear the brunt of the immigrants, but good policy or bad, it’s not the Supreme Court’s job to make policy either way. If you didn’t like it in Roe v. Wade, you shouldn’t like it here. While the ruling will tie up the policy until sometime next year until the Court considers and decides a wildly tangential question of whether these states can intervene, the underlying question of whether the justification for Title 42, that the nation was suffering from a Covid emergency, and thus the exercise of presidential emergency powers by unilateral fiat was justified, goes unmentioned. As Justice Gorsuch calls in dissent, bullshit.

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.

As Justices Gorsuch and Jackson, not to mention Ilya Somin, note, nobody is seriously claiming that we remain in the throes of the Covid pandemic.

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.

Right or wrong, this is not the job of the Supreme Court. Indeed, the Court has absolutely no authority to rule based on what policy is preferable or even necessary to stave off an immigration crisis born of legislative and executive neglect or failure. Even worse, by doing so, the Court is facilitating the evisceration of law that entitles immigrants to seek asylum. That may also be dubious policy, but it is the law and these immigrants seeking asylum are entitled by law to do so. They are prevented from doing so by Border Patrol sending them back across the border without the opportunity to exercise the right to seek asylum.

The irony here is that the Supreme Court’s order gives the Biden administration an out, if it chooses to use it.

This stay precludes giving effect to the District Court order setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy. (Emphasis added)

But the White House shows no interest in taking any further action.

“The court is not going to decide until June, apparently, and in the meantime, we have to enforce it. But I think it’s overdue,” Biden told reporters when asked about the high court’s decision.

Oddly, the Supreme Court’s grant of the stay is unjustifiable, but it takes the weight off the administration’s shoulders to deal with its constituency calling for the end of Title 42 so immigrants can no longer by expelled as a Covid emergency measure and the reality of thousands of immigrants crossing the border daily and no more empty bedrooms at the Naval Observatory.