The Supreme Court last week remanded Arizona v. Mayorkas, a state challenge to CDC’s efforts to end Title 42, to the U.S. Court of Appeals for the District of Columbia with directions to dismiss the case as moot. Title 42, of course, was an attempt to stem the introduction and spread of Covid-19, and the Court’s response was likely inevitable once the White House ended “emergencies” related to the disease on May 11. Thus, more than a year of litigation to continue those expulsion orders for migrants entering the United States illegally ended with a whimper, not a bang. Except for Justice Gorsuch — he brought the bang in a tubthumping statement that offers lessons for all, especially for whoever is crafting Biden’s border policies.
An Oversimplification. To be fair, the above is a gross oversimplification of how this case — and the state challenges to the Biden administration’s efforts to end those Title 42 expulsion orders — actually played out.
Briefly, the administration announced in early April 2022 that it would end Title 42 on May 23, 2022. Two days later, the states of Arizona, Louisiana, and Missouri filed suit in the U.S. District Court for the Western District of Louisiana against CDC, alleging its termination of Title 42 violated the Administrative Procedure Act (APA), in a case captioned Louisiana v. CDC.
The district court judge in Louisiana, Robert Summerhays, enjoined the termination of Title 42 on May 20, finding that the CDC violated the APA by failing to consider the effect ending Title 42 would have on immigration enforcement and the (by that point 24) plaintiff states in the case.
The Biden administration quickly filed a notice of appeal of that decision to the Fifth Circuit, but did not seek a stay of Judge Summerhays’ order.
While Louisiana was playing out, however, a separate challenge to Title 42 — this one filed in January 2021 by migrants and activists, captioned Huisha-Huisha v. Gaynor — was being heard by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia (D.C. District).
By November 15, 2022, the case was recaptioned Huisha-Huisha v. Mayorkas (for Secretary of Homeland Security Alejandro Mayorkas), and Judge Sullivan vacated and enjoined those CDC Title 42 orders in their entirety.
To give you an idea of how much Judge Sullivan disliked the Title 42 expulsion scheme, he originally intended the program to end that day, but on November 16 acceded to a DOJ motion to continue Title 42 to December 20 (such that it would end on December 21) to give DHS time to prepare, but only did so “WITH GREAT RELUCTANCE” (as if writing pronouncements in capital letters gives them more effect).
The state plaintiffs in Louisiana, who felt like they were being gamed by an administration that wanted to end Title 42 and wouldn’t fight Judge Sullivan’s order, attempted to intervene in Huisha-Huisha on November 20, alleging that:
[D]espite defending this lawsuit since January of 2021, the Federal Defendants have shifted course and abandoned their defense of Title 42. In essence, Federal Defendants have circumvented APA notice-and-comment requirements by abandoning defense of Title 42 and instead agreeing with Plaintiffs on a December 21 end date.
Of course, such alleged gamesmanship presents a whole raft of issues aside from whether Title 42 should continue or not, but in any event, the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) dismissed the states’ motion to intervene in an order dated December 16.
With the clock quickly ticking down on Title 42, the states next went to Chief Justice John Roberts, in his role as circuit justice for the D.C. Circuit, on December 19 seeking a stay and review.
That day, the chief justice issued an order in response to the states’ request to intervene (with the matter now captioned Arizona v. Mayorkas) staying Judge Sullivan’s November 15 order and directing the Biden administration to respond by December 20.
Following submission of the administration’s opposition (and after giving agents a Christmas breather), on December 27, the Supreme Court issued an opinion in Arizona, staying the end of Title 42 and setting the matter over for argument on just one question: “Whether the State applicants may intervene to challenge the District Court’s summary judgment order”.
Again, that question involved issues much bigger than whether Title 42 should be continued, and for a while it looked like the case and Title 42 would continue. But then, on January 30, the White House announced the administration would extend the Covid-19 national emergency and the coronavirus public health emergency (PHE) to May 11, and end both on that date.
On May 12, DOJ filed a letter with the Court informing the justices that the PHE ended at 11:59 PM the prior day, and reiterating an earlier argument that the case was now moot. The states pushed back with their own May 16 letter, asserting:
The Federal Government’s position ... appears to be that the expiration of emergencies does not moot challenges to its authority when it has prevailed below, but simultaneously moots all equivalent challenges in which it has lost. This “heads-I-win, tails-your-win-vanishes” approach cannot be reconciled with basic principles of the rule of law.
In any event, the Court on May 18 vacated the D.C. Circuit decision denying the states’ motion to intervene in Huisha-Huisha (a decision from which Justice Ketanji Brown Jackson dissented), but remanded Arizona to that court to dismiss the case as moot. Title 42 is now done, with a whimper.
Tubthumping with Justice Neil Gorsuch. Except for an attached statement from Justice Neil Gorsuch, who brought the tubthumping bang.
If you complained about and/or suffered under various federal and state Covid-19 restrictions — some seemingly contradictory and unduly punitive — that statement is for you.
He began with a history of the case, asserting that it “illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed”. I probably should have mentioned that both he and Justice Jackson dissented from that December 27 stay in Arizona.
From there, he expanded his complaints from the specific (in Arizona) to the general (everything else associated with Covid-19 restrictions), starting with states and localities:
Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions too. They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct. They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent.
Thereafter he took the federal government to the woodshed:
Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide. They used a workplace-safety agency to issue a vaccination mandate for most working Americans. They threatened to fire noncompliant employees, and warned that service members who refused to vaccinate might face dishonorable discharge and confinement. Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.
The judicial branch writ large and state and federal legislatures were the next defendants in Justice Gorsuch’s rhetorical dock for their inaction:
While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress — the bodies normally responsible for adopting our laws — too often fell silent. Courts bound to protect our liberties addressed a few — but hardly all — of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking by-litigation.
And then, he waxed philosophical in an excerpt for the ages:
Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action — almost any action — as long as someone does something to address a perceived threat. A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force. We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties — the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.
But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process. Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate.
...
Make no mistake — decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.
There’s something for everyone in Justice Gorsuch’s screed, but you likely won’t hear much about it because he spreads the blame widely, too. Perhaps the nameless demagogues crafting the president’s feckless border policies could take to heart the part about the dangers of “the concentration of power in the hands of so few” versus the wisdom of legislative mandates. I’m not optimistic, however.