Is Covid-19 Still a Problem, or Not?

The inconsistency of the administration’s SCOTUS filings on Title 42 and student-loan forgiveness

By Andrew R. Arthur on January 4, 2023

In February, the Supreme Court will hear three cases with their roots in the Covid-19 pandemic: Biden v. Nebraska and Brown v. U.S. Dep’t of Education, which involve the cancellation of billions of dollars in student loan debt in response to “the continuing economic consequences of the” pandemic; and Arizona v. Mayorkas, which focuses on CDC orders directing the expulsion of illegal migrants to stem the introduction and spread of Covid-19, issued pursuant to Title 42 of the U.S. Code. Each involves a challenge to federal action, but the administration’s response in the cases is inconsistent, at best.

Title 42. CDC issued its first Title 42 order in late March 2020, nine days after the World Health Organization declared a global Covid-19 pandemic. The agency reissued those orders on several occasions, subject to amendments and modifications, through the end of the Trump administration and into the Biden administration.

In early April, the administration announced it would be ending Title 42 effective May 23, despite DHS warnings that the number of aliens who would seek to enter the United States would more than double post-Title 42.

Why would the end of public-health orders spur a border surge?

In response to a border surge of its own, the Trump administration implemented several policies to deter migrants from entering the United States illegally. Those policies were successful and, when he took office, Biden inherited what his first Border Patrol chief, Rodney Scott, described as “arguably the most effective border security in” U.S. history.

Biden quickly reversed nearly all those Trump policies while failing to implement any border-control strategies in their place. In fact, in a break with all of its predecessors, the current administration has expressly rejected the deterrence of illegal entrants as a border strategy, going so far as attempting to prosecute Border Patrol agents who tried to stop migrants from entering illegally.

Again, those Title 42 orders were the only quasi-border-control regime that carried over from the Trump administration — “quasi-border-control” in that, while they directed agents to expel migrants entering illegally, they were premised and promulgated on authority in the public-health provisions of the U.S. code.

In any event, the prospect of up to 18,000 aliens crossing the border illegally per day once those orders were lifted prompted a group of states to sue in federal court in Louisiana to keep them in place. In essence, their argument was that CDC should not have ended Title 42 without getting their input.

On May 20, Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana blocked the administration’s efforts to end Title 42, in a case captioned CDC v. Louisiana. The administration immediately appealed that order, but continued to expel migrants under Title 42 (albeit with decreasing effect).

Then, on November 15, a separate district court judge (Emmet Sullivan of the U.S. District Court for the District of Columbia) issued an order enjoining and vacating Title 42. That order was to take effect immediately, but Judge Sullivan acceded to the administration’s request to terminate those CDC orders on December 21, to give DHS time to get a response to the anticipated border surge in place.

DOJ did not seek a stay of Judge Sullivan’s order, and so on November 20, the states attempted to intervene in that matter (Huisha-Huisha v. Mayorkas) to appeal his decision and keep Title 42 in place. The D.C. Circuit rejected their application to intervene on December 16, a decision that the states asked the Supreme Court to review on December 19, in a case now captioned Arizona v. Mayorkas.

That day, Chief Justice Roberts granted a brief stay to allow the Court to consider the states’ appeal, and then on December 27, the justices issued a new stay of Judge Sullivan’s termination of Title 42 to allow them to consider the states’ intervention argument in Arizona.

The decision to hear Arizona was not unanimous. Justices Sotomayor and Kagan indicated that they would have denied the states’ application, while Justice Gorsuch, writing for himself and Justice Jackson, dissented from the opinion granting that application.

In his dissent, Justice Gorsuch asserted: “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.”

Student Loan Forgiveness. In March 2020, the Trump administration paused both federal student loan payments and interest on those loans as part of its response to the Covid-19 pandemic. Five months later, Trump extended that pause through December 31, 2020, and it has subsequently been extended on numerous occasions since.

Taking that pause one step further, on August 24, the White House announced that it would “provide up to $20,000 in debt cancellation to Pell Grant recipients with loans held by the Department of Education, and up to $10,000 in debt cancellation to non-Pell Grant recipients”, subject to income requirements.

Biden asserted this cancellation was intended “to provide more breathing room to America’s working families as they continue to recover from the strains associated with the COVID-19 pandemic”.

A coalition of states challenged that plan, claiming that it would deprive them of revenue. While a district court judge initially denied their request for a preliminary injunction and dismissed the claim, the Eight Circuit reversed that decision on November 14, in a matter captioned Nebraska v. Biden.

The Supreme Court has agreed to hear Nebraska on February 28, along with a separate case, U.S. Dep’t of Education v. Brown. In Brown, two individual plaintiffs challenged Biden’s loan-forgiveness scheme on the grounds that the administration had failed to comply with federal law requiring notice and comment in implementing certain regulatory programs.

On November 10, a federal district court judge in Texas granted the plaintiffs’ request in Brown and vacated the student-loan forgiveness program. A request to stay that order pending appeal was denied by the Fifth Circuit on November 30 and, as noted, the Supreme Court will consider that matter along with Nebraska in late February.

Competing Federal Claims. Which brings me to the administration’s claims before the Supreme Court, in Arizona on the one hand and Nebraska and Brown on the other.

In its opposition to the states’ request for Supreme Court review in Arizona, DOJ argued:

The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings. The government in no way seeks to minimize the seriousness of that problem. But the solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification. [Emphasis added.]

In its application to vacate the Eighth Circuit’s injunction in Nebraska, however, DOJ asserted:

In March 2020, President Trump declared a national emergency in light of the COVID-19 pandemic. That declaration remains in effect, and the government has declared all 50 States, the District of Columbia, and the territories to be disaster areas. COVID-19 has killed more than one million Americans and led to the hospitalization of millions more. COVID-19 continues to kill more than 2,000 Americans a week. The pandemic has also inflicted severe economic harms, including layoffs, spikes in inflation, rising delinquency rates on debt, and projected reductions in lifetime earnings for students who left school during the pandemic. [Emphasis added; internal citations omitted.]

An almost identical passage is included in DOJ’s application to stay the Fifth Circuit’s judgment in Brown. Keep in mind that 2,000 deaths per week from Covid-19 is higher than the death rate for diabetes (1,965 deaths per week), influenza and pneumonia (1,030 deaths per week), and “nephritis, nephrotic syndrome, and nephrosis” (1,011 deaths per week) — the seventh, and eighth, and ninth leading non-Covid-19 related causes of death in the United States according to CDC.

To be fair, DOJ’s application in Nebraska was filed on November 18 and in Brown on December 2, while its opposition in Arizona was submitted on December 20. Respectfully, however, not much changed with respect to Covid-19 in the interim, and not much has changed since.

Nothing really mandates consistency in the administration’s arguments when it comes to the effect of the pandemic. But if Covid-19 remains such an existential threat that it, in part, mandates $400 billion in federal spending (the Congressional Budget Office’s estimate of the cost of Biden’s student-loan forgiveness plan), wouldn’t that threat logically also require DHS to close the border to illegal migrants?

Arguments haven’t been scheduled in Arizona, but don’t be surprised if the Supreme Court doesn’t consider that Title 42 case on February 28, the same day it will take up Covid-19-related student-loan forgiveness. If they hear those cases serially, expect to hear the justices say, “Didn’t you just argue ... ?”, a lot. Consistency’s not always a virtue in politics, but it is in Supreme Court arguments.

Topics: Title 42