On Thursday, the United States Supreme Court issued a brief Order in “the Title 42 Cases” vacating an Order of the U.S. Court of Appeals for the District of Columbia Circuit, which will be explained in more detail below. But what is interesting is a very unusual “Statement” authored by Justice Neil Gorsuch, alone, appended to that Order.
“The Title 42 Cases” involve different federal courts issuing completely opposite orders each having nationwide effect and effectively causing legal mayhem in the immigration/COVID context.
When the COVID pandemic began in March 2020, executive branch officials issued “Title 42” orders severely restricting immigration to prevent the spread of COVID from immigrants to the U.S. population. This continued until April 2022, when the CDC issued a Notice in the Federal Register indicating that the immigration restrictions were no longer necessary to prevent the spread of COVID, and setting May 23, 2022 as the official date COVID-related immigration restrictions would terminate.
In the federal court in the Western District of Louisiana, three states, Arizona, Louisiana, and Missouri, sued the CDC and requested the court issue an injunction preventing the CDC from terminating the COVID-related immigration restrictions. Justice Gorsuch explains why:
[The] States argued that the government’s decision to end the Title 42 orders violated the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq., because agency officials had not provided advance notice of their decision or invited public comment. The States did not seriously dispute that the public-health justification for the orders had lapsed. The States also understood that their lawsuit would only require the government to take certain additional procedural steps before ending the Title 42 orders. But the States apparently calculated that even a short, court-ordered extension of those decrees was worth the fight. Worth it because, in their judgment, a new and different crisis had emerged at the border and the federal government had done too little to address it. Keeping the Title 42 orders in place even temporarily was better than the alternative.
The Court agreed with the States and entered a “nationwide injunction that effectively required the government to enforce the Title 42 orders until and unless it complied with the [APA’s] notice-and-comment procedures.” That Injunction Order is available here. So the lifting of the severe restrictions on immigration that the States had feared was delayed, as they had hoped.
But not so fast!
Meanwhile, a thousand miles away, a group of asylum seekers filed a competing class-action lawsuit in a federal district court in Washington, D. C. This group argued that, from the start, the government lacked legal authority to issue its Title 42 orders. Ultimately, the D. C. district court agreed with the group’s assessment and issued an equally sweeping form of relief—sometimes called ‘universal vacatur’—that purported to wipe the Title 42 orders off the books as if they never existed. So it is that the federal government found itself in an unenviable spot—bound by two inconsistent nationwide commands, one requiring it to enforce the Title 42 orders and another practically forbidding it from doing so.
As I said, after the D.C. federal court’s Order, available here, mayhem ensued.
To make matters even worse, two of the States who had sued in federal court in Louisiana and won, Arizona and Louisiana, joined by several other states, including Texas, moved to intervene in the D.C. case, suspecting that the Government, who lost the ability to enforce the Title 42 Orders there, would not press an appeal very hard because the CDC had already made it clear it didn’t want to enforce the Title 42 Orders anyway. But, the U.S. Court of Appeals for the District of Columbia denied the States’ Motion to Intervene.
So, late in 2022, the States turned to [the U.S. Supreme] Court seeking two things. First, they asked for expedited review of the appellate court’s order denying their motion to intervene. Second, they asked for a stay of the D. C. district court’s decree vacating the Title 42 orders. The Court granted both requests. In doing so, the Court effectively extended the Title 42 orders indefinitely.
We posted about the Supreme Court, via Chief Justice Roberts, staying the D.C. district court’s vacatur of the Title 42 Orders here, SCOTUS Chief Justice John Roberts Issues Temporary Stay on Order to End Title 42, and here, SCOTUS Halts Title 42 Termination, Will Hear Arguments in February.
Interestingly, Justice Gorsuch, in the minority, voted to deny the stay:
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.
Which brings us to Thursday, where the Supreme Court voted to vacate the D.C. Court of Appeals’ Order denying the States motion to intervene in the appeal because it was moot. Why is that? Justice Gorsuch explains:
Why the sudden about-face? Recently, Congress passed and the President signed into law a joint resolution declaring that the COVID–19 emergency is over. The Secretary of Health and Human Services, too, has issued his own directive announcing the end of the public-health emergency underlying the Title 42 orders. Apparently, these developments are enough to persuade the Court that the Title 42 orders the government wished to withdraw a year ago are now as good as gone and any dispute over them is moot.
So the Title 42 Orders are effectively over, as are the severe immigration restrictions they imposed, as we posted about in detail earlier this month:
Which brings us to Justice Gorsuch’s insightful comments about the Biden Administration, Congress, and the American people’s response to COVID:
I lay out the history of this case only because it is so typical…[T]he history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.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.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.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.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. Decisions announced on the fly are rarely as wise as those that come after careful deliberation. Decisions made by a few often yield unintended consequences that may be avoided when more are consulted. Autocracies have always suffered these defects. Maybe, hopefully, we have relearned these lessons too.In the 1970s, Congress studied the use of emergency decrees. It observed that they can allow executive authorities to tap into extraordinary powers. Congress also observed that emergency decrees have a habit of long outliving the crises that generate them; some federal emergency proclamations, Congress noted, had remained in effect for years or decades after the emergency in question had passed. At the same time, Congress recognized that quick unilateral executive action is sometimes necessary and permitted in our constitutional order. In an effort to balance these considerations and ensure a more normal operation of our laws and a firmer protection of our liberties, Congress adopted a number of new guardrails in the National Emergencies Act.Despite that law, the number of declared emergencies has only grown in the ensuing years. And it is hard not to wonder whether, after nearly a half century and in light of our Nation’s recent experience, another look is warranted. It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level. At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. 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.
We’re not the only ones who have noticed Justice Gorsuch’s important comments:
Of course, the lefties went full crazy, blaming that now-familiar (not to mention lazy) excuse, “white privilege”:
I think Justice Gorsuch is my new favorite Supreme Court justice.
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