The States Want to Stage an Intervention for Biden’s Troubled Borders, and the Supreme Court Seems Eager to Oblige

Beyond Title 42 is the question whether the feds can collude in lawsuits to avoid the rulemaking process

By George Fishman on December 28, 2022

In a belated Christmas gift to national sovereignty, and as my colleague Andrew Arthur describes, “On December 27, the Supreme Court issued an opinion in Arizona v. Mayorkas, staying the end of Title 42 in response to an application for a stay filed by a coalition of states who are seeking to keep those CDC [Centers for Disease Control and Prevention] orders, which direct the expulsion of illegal migrants in response to the Covid-19 pandemic, in place.” The Court directed its “Clerk ... to establish a briefing schedule that will allow the case to be argued in the February 2023 argument session. The stay shall terminate upon the sending down of the judgment of this Court.” Thus, Title 42 (at least in its anemic Biden form) should remain in effect at least until the summer.

The Court was clear that it was granting the states’ petition for a writ of certiorari only as to the procedural question of “Whether the State[s] ... may intervene to challenge the district court’s summary judgment order [mandating the termination of DHS’s current use of Title 42].” The Court will not be reviewing “the underlying merits” (or, more precisely, the underlying meritlessness) of the district court’s termination order, its review “limited to the question of intervention.”

Interestingly, the Court stated that “the stay itself does not prevent the federal government from taking any action with respect to th[e Title 42] policy.” What the Court didn’t mention was that in May a federal district court in Louisiana issued a preliminary injunction preventing the federal government from doing just this — finding that the Biden administration had violated the Administrative Procedure Act (APA) by issuing an order terminating CDC’s Title 42 orders without first going through the required notice and comment process. As Arthur notes:

There are [only] two conditions that could trigger the ... termination of Title 42 before February. The first is an order from the Fifth Circuit in Louisiana reversing Judge Summerhays’ order. If that happened, Title 42 would be history.

The second, which is less likely, would involve the Biden administration again terminating Title 42 .., only this time in a process that satisfies the requirements of the APA.

Also interestingly, Trump appointee Justice Neil Gorsuch joined the Court’s Obama- and Biden-appointed justices — Sotomayor, Kagan, and Jackson — in opposition. Justice Gorsuch even wrote a dissent that was joined by Justice Ketanji Brown Jackson.

Most interestingly, neither the Supreme Court’s stay/grant of petition for a writ of certiorari nor the Gorsuch-Jackson dissent take up the seeming double dog dare by the states that the Court refer to their application as "cert. worthy". Whether or not a pop culture reference to a particularly infamous “Seinfeld” episode, I’m sure that Elaine would approve of the states’ gambit.

It is clear to me why the Court granted the stay and decided to take up the issue of intervention. First, the Court has been quite active recently in stepping in and allowing state attorneys general and state legislatures to intervene in federal cases where they have important interests at stake.

Second, as the states point out to the Court, there has been an “evergrowing number of attempts to circumvent APA requirements through calculated capitulation, which is fundamentally corrosive to bedrock rule-of-law principles”. Chief Justice Roberts appears quite exercised about this “rulemaking-by-collective-acquiescence”. In June, he wrote a concurrence to the Court’s dismissal of a writ of certiorari stating that:

This case involves [DHS’s] Public Charge Rule. ... [that] set out the test ... to determine whether an applicant for admission into the country ... is “likely at any time to become a public charge,” which would make him ineligible. ... Several parties filed lawsuits arguing that the [Trump administration] Rule was unlawful because it defined “public charge” too broadly.

We granted certiorari in this case not to address the merits of that argument, but to decide whether the petitioners — 13 States which support the Rule — should have been permitted to intervene in this litigation to defend the Rule's legality in the Court of Appeals.


When this and other suits challenging the Rule were first brought in 2019, the Government defended it. And when multiple lower courts ... found [it] unlawful, the Government appealed those decisions. After a change in administrations, though, the Government reversed course and opted to voluntarily dismiss those appeals, leaving in place the relief already entered.

A new administration is of course as a general matter entitled to do that. But the Government then took a further step. It seized upon one of the now-consent judgments against it ... vacating the Rule nationwide, issued in a different litigation — and leveraged it as a basis to immediately repeal the Rule, without using notice-and-comment procedures. ... This allowed the Government to circumvent the usual and important requirement, under the [APA], that a regulation originally promulgated using notice and comment ... may only be repealed through notice and comment. ... As part of this tactic of “rulemaking-by-collective-acquiescence,” [quoting a dissenting opinion in a 9th Circuit case] ... the Government successfully opposed efforts by other interested parties ... to intervene in order to carry on the defense of the Rule.


These maneuvers raise a host of important questions. The most fundamental is whether the Government's actions, all told, comport with the principles of administrative law.

In the case’s oral argument, Justice Alito also expressed concern:

I congratulate whoever it is in the Justice Department or the executive branch who devised this strategy and was able to implement it with military precision to effect the removal of the issue from our docket and to sidestep notice-and-comment rulemaking, but all of that took place. I'm not aware of a precedent where an incoming administration has done anything quite like this.

Even Justice Kagan put it this way to the Biden administration’s principal deputy solicitor general:

[T]he government doesn't have to come up here and defend something that it no longer believes in. The real issue to me is the evasion of notice-and-comment. [T]he government bought itself a bunch of time where the rule was not in effect. If ... the administration had come in and said, oh, my gosh, we have a notice-and-comment rule, we really hate it, we have to change it, I mean, it would have taken months to change it. ... I ... want you to assume that that is a problem and that we shouldn't be green-lighting that behavior for your administration or any other administration. ... [W]hat's the remedy for something like this if I think that this does present at least a significant APA question?

The Biden administration’s strategy of “rulemaking-by-collective-acquiescence”, is front and center in its attempt to terminate the current use of Title 42. As the states argue to the Supreme Court:

[There have been] collusive efforts of Plaintiffs [“a group of asylum-seeking families who fled to the United States”] and [DHS Secretary Mayorkas and the other] Federal Respondents to circumvent the APA and repeal the Title 42 System without notice and comment. Following the district court’s opinion, Federal Respondents saw an opportunity to evade the Louisiana court’s injunction by colluding with Plaintiffs to craft a resolution that terminated the Title 42 System (1) with the same delayed effective date as the enjoined Termination Order (2) and also like that order, foregoing compliance with the APA’s notice and comment procedures. Federal Respondents’ calculated and strategic surrender thus attempts to achieve through collusion what could not be obtained through lawful rulemaking.

And they argue to the Court that:

  • [T]he federal government continues to engage in “this tactic of ‘rulemaking-by-collective-acquiescence.’” ... Indeed, Federal Respondents make little effort to conceal that they prefer defeat to victory here, which is a hallmark of collusion at work.

  • Neither of the Respondents deny that the effect of the government’s appeal-and-abeyance tactic will be to obliterate the effect of a separate injunction specifically entered against the Federal Government ... [e]xploiting a loss in one case to achieve victory in another.

  • Federal Respondents have, once again, engaged in rulemaking-through-strategic-surrender.

  • This case ... involves a collusive agreement. ... reached mere hours after the district court’s opinion (or perhaps before*).

    *fn Neither Plaintiffs nor Federal Respondents deny that they had reached an agreement about jointly seeking a short stay before the district court had even issued its decision.

  • [T]his agreement ... replicated in substance precisely what Federal Respondents had previously attempted but had been enjoined in Louisiana from obtaining. And such a replication was made possible only through agreement between the parties, in a manner that served both of their interests to the immense detriment of ... the States. ... An agreement with opposing parties that makes litigation defeat more attractive than victory is the quintessential example of a collusive one. ... Federal Respondents are ... “leveraging” their loss here to achieve a result that would otherwise require either (1) actual victory in other litigation or (2) actual notice-and-comment compliance.

It seems that everything is teed up here for a Supreme Court order allowing the states to intervene, and possibly setting down some valuable precedent to shut down the abuse of “rulemaking-by-collective-acquiescence”. As a collateral effect, if the states are allowed to intervene and the Federal Appeals Court for the District of Columbia Circuit rules against them on the merits, the states could argue to the Supreme Court that they have another “cert. worthy” case, and the Court could finally reach the “underlying merits” of the District Court’s termination order.

The Gorsuch-Jackson dissent (I hope I won’t be seeing too many more of those!) is, to say the least, curious. It argues that:

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. ... The States ... do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. ... [I]t is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life.

Well, the issues here are larger than a policy that has outlived its shelf life. As the States point out:

Federal Respondents ... contend ... that the policies at issue no longer warrant review because CDC “ha[s] already rescinded” them. But that is wrong for two reasons: First, these issues could easily recur and, left uncorrected, hamstring emergency responses in future epidemics. Indeed, that is precisely why Federal Respondents explained that they have taken an appeal.

In addition, this case gives that Court an opportunity to crack down on the practice of “rulemaking-by-collective-acquiescence”. Which should be important to Justice Gorsuch, as he joined Chief Justice Roberts’ concurrence in the Public Charge Rule case and he actually delivered the opinion of the Court in a recent case in which it allowed North Carolina’s legislative leaders to intervene to protect the legislature’s interests.

The dissent also states that:

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. ... I do not discount the States’ concerns. ... But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.

Sort of sounds like Dr. McCoy telling Captain Kirk “Dammit, Jim, I'm a doctor, not a bricklayer!” In any event, it is true, as I have written, that:

The [CDC Title 42] order, and subsequent extensions, were implemented to safeguard the public health. However, they have had an extraordinarily beneficial effect on border security, resulting in 197,371 “expulsions” in FY 2020, 1,040,695 in FY 2021, and 427,034 in FY 2022.

Sounds like exaptation to me (a term used in evolutionary biology to describe a trait that has been co-opted for a use other than the one for which natural selection has built it).

But while the elephant in the room here is of course the impending total collapse of America’s borders, the legal abuse of “rulemaking-by-collective-acquiescence” is a real one, and amply justifies the Court’s stay and grant of the states’ petition for a writ of certiorari.