Patterico's Pontifications

12/28/2022

Supreme Court: Title 42 Remain In Effect At Least Until Oral Arguments Heard

Filed under: General — Dana @ 10:46 am



[guest post by Dana]

From Bloomberg Law:

The US Supreme Court ordered pandemic-era border restrictions to remain in effect, granting a request by Republican state officials who said lifting the rules would have produced an unmanageable surge of migrants.

Voting 5-4, the justices blocked a lower court decision that was set to invalidate the so-called Title 42 rule. The justices also said they will hear arguments in late February or early March on the states’ bid to intervene in defense of the policy…

The order extends a temporary pause Chief Justice John Roberts imposed, keeping the border policy in place while the Supreme Court considers the intervention issue. The court said it won’t be directly considering whether the Title 42 rule is lawful.

The court also indicated the Biden administration could continue its effort to repeal the policy, a push that is at the center of a separate legal fight. A federal trial judge has blocked that effort, and the case is now before a different appeals court.

Judge Gorsuch joined the court’s three liberals in dissent. He opined:

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. 87 Fed. Reg. 19944. The States may question whether the government followed the right administrative steps before issuing this decision (an issue on which I express no view). But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. And it 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.

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—at the very least during the pendency of our review. Today, the Court supplies just such an order. For my part, I do not discount the States’ concerns. Even the federal government acknowledges “that the end of the Title 42 orders will likely have disruptive consequences.” Brief in Opposition for Federal Respondents 6. 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.

I believe that Gorsuch is correct. The Supreme Court is not meant to be in the business of policymaking for either side of the political aisle, and we shouldn’t expect or want it to be. Even if lifting Title 42 complicates the situation at the Southern border (which it likely will), a policy put in place specifically because of the Covid-19 emergency, which has now run its course, makes it clear that Title 42 is not the vehicle to use to gain control of the border. For better or worse, control of that remains the responsibility of this administration and lawmakers.

–Dana

45 Responses to “Supreme Court: Title 42 Remain In Effect At Least Until Oral Arguments Heard”

  1. Hello.

    Dana (1225fc)

  2. To be fair, this struggle between the Executive and the Judiciary is over something that belongs to Congress. Congress should make it clear that “asylum” requests must occur in normal order, not as a second bite at the apple when sneaking in doesn’t work.

    And who knows, maybe they did make that clear. The amount of power that the Executive has assumed (ignoring laws, making up new ones and then ignoring those, too) makes Congress almost irrelevant.

    What we really need is for Congress to regain control over its delegated powers, so that either House can veto a regulation made in a delegated area. As it stands, there is no reason for them to do anything at all. The President can simply issue orders.

    Kevin M (1ea396)

  3. To be fair, Congress really doesn’t seem terribly interested in doing the job required of them. They would rather lob bombs at the opposition on social media and try to “own” the other side rather doing the hard job that they were elected to do. They have abdicated their responsibility and presidents have jumped into the opening.

    Dana (1225fc)

  4. Hi Dana
    I agree that Gorsuch is correct.
    A problem we have is that many in the political class work against the clear interests of their constituents in deference to the national party.
    El Paso TX opened a shelter for migrants that served 19,000 in tow months. Sounds like a lot, but the Border Patrol releases nearly 2000 a day into El Paso County TX
    Mayor Oscar Leeser is reluctant to be more than mildly critical of Biden policies.

    Then there are political hacks looking to move up into state, national politics
    NYC got 350 immigarnts a day for three days in a row and declared an emergency ($$$) and NYO Mayor Adams blamed it on the Governor of Texas for “creating a man-made humanitarian crisis”, which was a huge lie and a smear wrapped in a bow

    steveg (45487b)

  5. Yes, but they abdicated much of it with the proviso of the single-house veto, but the Supremes killed that while letting all of the abdication stand. Instead we have this construct called “Administrative Procedures Act”, which is ignored as often as possible by every administration, causing endless trips through the court system.

    INS v Chadha was a huge mistake.

    Kevin M (1ea396)

  6. The alternative for Congress is to kill the filibuster, which in its present form makes legislating very difficult. The Democrat lock on Congress in the last century made it toothless, but the filibuster today is used more frequently than not.

    Perhaps a limited filibuster: You can demand 60 votes for cloture, but you only get 5 per year.

    Kevin M (1ea396)

  7. El Paso TX opened a shelter for migrants that served 19,000 in tow months.

    That’s 19,000 felonies. On paper.

    §1324. Bringing in and harboring certain aliens
    (a) Criminal penalties
    (1)(A) Any person who-
    ….
    (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;

    Congress is to laugh at. Their stupid law only impedes the law-abiding. The ones whose paperwork ICE and USCIS have messed up on.

    nk (11fc8d)

  8. It’s an invasion on the southern border. That’s an act of war and the President and Congress are both derelict in their top duty to defend the nation from invasion.

    NJRob (9b009d)

  9. One of the legacies of our current government is that it is stupid to abide by the law. From student loans, to immigration, to theft. That is a very incomplete list.
    This immigration problem belongs to the far left of the (D) party. Republicans have met them halfway a couple times now. The motivation for meeting half way by the (R) people can and should be questioned

    steveg (119edc)

  10. Gorsuch is absolutely correct, and should be pounding that “we are a court of law, not policymakers of last resort” over and over again.

    What worries me, is the claims that the states can declare war against these “invaders”.

    What does that look like?

    And, in doing so what kind of precedent is that going to take?

    whembly (d116f3)

  11. This might force AOC to wait till 2028 to run for president before we can citizenship up all the latinx coming across the border. Vote early and often for AOC!

    asset (185696)

  12. The motivation for meeting half way by the (R) people can and should be questioned

    And it is every time, which has meant that they only go a quarter way. The GOP needs to determine what the red lines are (e.g. no path to citizenship for adults who entered illegally, secure the border first), and then negotiate on everything else.

    The situation is well past intolerable, and immigration law, as it stands, doesn’t work. It actually encourages illegal immigration, it misallocates priorities to the wrong immigrants, and it places no real limits on immigration as a whole.

    We are at the point where LEGAL immigration processing is at a halt as all the resources are diverted to illegal immigration and asylum requests.

    Kevin M (1ea396)

  13. This might force AOC to wait till 2028 to run for president before we can citizenship up all the latinx coming across the border. Vote early and often for AOC!

    You’re a caricature, right? The right-winger’s view of the average leftist?

    (Just as Trump was a leftist’s view of the average Republican)

    Kevin M (1ea396)

  14. What worries me, is the claims that the states can declare war against these “invaders”.

    Why, .50 machine-gun nests, of course. You have a problem with that?!?

    But really, it IS an invasion, albeit a soft one. They don’t want to conquer us, but the WILL occupy the land. Los Angeles is now a majority Hispanic city and “East LA” has expanded to cover much of the San Fernando Valley. You cannot work in retail in Los Angeles if you aren’t bilingual.

    Kevin M (1ea396)

  15. One of the legacies of our current government is that it is stupid to abide by the law.

    There were people who seriously suggested that Trump “waive” capital gains taxes.

    Kevin M (1ea396)

  16. Waiving capital gains for “Jubilee 2020” would have been great, but sadly, no.

    steveg (6728cc)

  17. Like anythging they decree is going to deter the rate of the invasion…

    Nearly a year. Found the leaker?

    Nope.

    DCSCA (1940a4)

  18. a policy put in place specifically because of the Covid-19 emergency, which has now run its course

    LOL

    US to impose new restrictions on travelers from China amid COVID outbreaks

    The Biden administration is planning new coronavirus precautions on travelers arriving from China due to a surge in COVID-19 cases and concerns about the lack of transparent reporting data from the country, federal health officials said Wednesday.

    Beginning Jan. 5, all air passengers at least 2 years old originating from China will be required to show a negative COVID-19 test no more than two days before their departure from China, Hong Kong or Macau.

    JF (9a1d81)

  19. a policy put in place specifically because of the Covid-19 emergency, which has now run its course

    Biden administration extends COVID-19 public health emergency declaration

    JF (9a1d81)

  20. tossing covid era Title 42 and making covid era voting rules permanent sounds like the sort of double standard we’ve come to expect

    JF (06bc44)

  21. Even though Gorsuch joined the left in dissent, we can still thank Trump for the 5-4 ruling and mitigating Biden’s chaos at the border.

    JF (9a1d81)

  22. BTW, thanks for the Dave Barry heads-up, Jim. Here’s the non-paywall from The Miami Herald.

    The best thing we can say about 2022 is: It could have been worse. For example, we could have had nuclear Armageddon. This briefly appeared to be a possibility, at least according to the president, who broke the news in October at (Why not?) a Democratic Party fundraiser at the home of a wealthy donor in New York City. That must have been an exciting event! One moment everybody’s standing around chewing hors d’ oeuvres, and the next moment WHOA WHAT DID HE JUST SAY?

    The next day, after the news media ran a bunch of scary headlines, the White House Office of Explaining What the President Actually Meant explained that the president wasn’t suggesting that we were facing Armageddon per se, but was merely, as is his wont, emitting words, one of which happened to be “Armageddon,” and everybody should just calm down.

    nk (11fc8d)

  23. That’s 19,000 felonies. On paper.

    §1324. Bringing in and harboring certain aliens
    (a) Criminal penalties
    (1)(A) Any person who-
    ….
    (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;

    You forgot the rest of the section:

    ………shall be punished as provided in subparagraph (B).

    (B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs-

    (i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;

    (ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;

    (iii) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) during and in relation to which the person causes serious bodily injury (as defined in section 1365 of title 18) to, or places in jeopardy the life of, any person, be fined under title 18, imprisoned not more than 20 years, or both; and

    (iv) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined under title 18, or both.
    ………

    So the mere fact that the aliens are in an El Paso shelter is not necessarily a felony under this section.

    Rip Murdock (d2a2a8)

  24. Tsk, tsk, Rip! Leave the lawyering to lawyers.

    As a general rule, an offense punishable by imprisonment for than a year, unless specifically labeled a misdemeanor, is a felony.

    Where you want to go is whether “conceals, harbors, or shields from detection” is in the disjunctive as I interpret it. That is, whether “harbors” is just plain “harbors” and not also for the purpose to conceal or shield from detection.

    nk (11fc8d)

  25. Tsk, tsk, Rip! Leave the lawyering to lawyers.

    As a general rule, an offense punishable by imprisonment for than a year, unless specifically labeled a misdemeanor, is a felony.

    Where you want to go is whether “conceals, harbors, or shields from detection” is in the disjunctive as I interpret it. That is, whether “harbors” is just plain “harbors” and not also for the purpose to conceal or shield from detection.

    nk (11fc8d) — 12/28/2022 @ 4:58 pm

    The point is that the mere fact that they in shelters in El Paso is not a crime, at least under the section you cite. To be convicted of a felony a defendant must meet the one of the following factors in subparagraph B: “in which the offense was done for the purpose of commercial advantage or private financial gain,” “during and in relation to which the person causes serious bodily injury….or places in jeopardy the life of, any person,” or “resulting in the death of any person”. Being invited to stay in a shelter doesn’t meet any of those factors.

    Rip Murdock (d2a2a8)

  26. Sigh! Subparagraph A(iii) which I cited:

    (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;

    Subparagraph B(ii) which you cited:

    (ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;

    Those aggravating factors which you cite are in other subparagraphs with other, enhanced, penalties.

    nk (11fc8d)

  27. I know, right? Lawyers!

    nk (11fc8d)

  28. @26:

    Well, with 19,000 “migrants” someone might have died.

    Kevin M (1ea396)

  29. Jan. 6 committee withdraws subpoena to Donald Trump as it concludes its investigation, per letter obtained by @guardian”

    https://twitter.com/hugolowell/status/1608282168006004736?s=46&t=G2wnK_ltXQDoPGf9kg1ghA

    Obudman (6c7d77)

  30. @29. ROFLMAOPIP. And what was the cost to the Treasury for this ABC TV exec produced show committee??

    ‘Catch Us If You Can…’

    https://www.youtube.com/watch?v=LJYgNqOFBLk

    DCSCA (8af9d3)

  31. I’m with Gorsuch and Dana on this. Using COVID as a fig-leaf is quite silly. But at the same time, our government’s inability to control the southern border (let me be more specific: the Democrat party’s unwillingness to control the southern border) is very frustrating to me. Our government is so dysfunctional right now that the only legitimate options which would pass constitutional muster in my mind are for (1) the GOP to try to use legislative power to force the Biden Administration to do its Constitutional duty and defend the border, then fail as the Administration and Senate either buries the legislation, vetoes, or simply ignores it, and then (2) impeach Joe Biden for his failure to execute his sworn duties.

    We’re really to the point where we’ve failed the while republican form of democracy thing. Too bad; it seemed to have potential.

    JVW (6458d0)

  32. @31. These berobed, bureaucratic bozos can’t even find the leaker. Their decrees and opinions are almost comical to average Americans watching illegals storm across the southern border… like Russians into Ukraine. The incompetence at so many levels is astonishingly deep— and accepted by the struggling citizenry. Populists keep option 3 in their pocket- dump the tea into the harbor; or into the Rio Grande… or the surf off St. Croix; or the beaches by Brandon Falls… castles have been stormed for less.

    DCSCA (881eda)

  33. The Supreme Court is not meant to be in the business of policymaking for either side of the political aisle, and we shouldn’t expect or want it to be.

    Yeah, but they inevitably do– at least back in the day before they became comic relief and still had some shred of integrity. Now they’re just paper-pushing bureaucrats w/lifetime gigs. As Zed would say, “You’re everything we’ve come to expect from years of government training.”

    Role of the Supreme Court in Policy Making

    https://uniquewritersbay.com/role-of-the-supreme-court-in-policy-making/

    W/t leaker still at large, they project ‘all the things we’vd come to expet from years of government service.’ :

    Supreme Court Trust, Job Approval at Historical Lows

    https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx

    Sad. But did it to themselves.

    “Truth is stranger than fiction, Judgie-Wudgie.” – Curly Howard ‘Disorder In The Court’ 1936

    DCSCA (881eda)

  34. I’m with Gorsuch and Dana on this.

    As far as the law is concerned, sure. But the administration is so far from following the law that I’m not sure it matters much. Being a stickler for the rules in a Calvinball game seems pretty much playing the sucker.

    Kevin M (1ea396)

  35. What I would like to see:

    The Court reads the law on immigration and requires Biden to follow it to the letter. Hopefully it forces Congress to actually deal with it.

    Kevin M (1ea396)

  36. @13 trumpsters are now the average republican. Never trumpers are a minority as jeb bush and karen tayler roberson found out the hard way. The left wants AOC the corporate establishment democrats want any moderate who they think might get the nomination now that ca. gov. “says” he is not running. Newsome/AOC 2024 to keep the party together. If harris or buttageig they will have to pick AOC or the left walks.

    asset (24dab8)

  37. #35

    If Trump had been an intelligent man who actually wanted to solve the immigration issue, he would on day 1 of his administraton, started enforcing the immigration law as written. That would have gotten all the parties to the bargaining table in no time.

    JVW’s approach to settling the immigration issue has appeal. It might actually have worked had the GOP been a serious party from 2016 on. But, after the clown show and the elevation of Hunter Biden’s laptop to the most awfully important proof of perfidy, the value (and threat) of impeachment has dwindled to just another tool in the partisan games played in Washington.

    Appalled (ae8648)

  38. Appalled,

    try as you might to dismiss the Biden laptop, it shows that NeverTrump colluded to elect a corrupt and paid for politician who sold out the nation for dollars. 10% to the big guy. Meeting after meeting to seal the deal.

    NJRob (eb56c3)

  39. If Trump had been an intelligent man who actually wanted to solve the immigration issue, he would on day 1 of his administraton, started enforcing the immigration law as written. That would have gotten all the parties to the bargaining table in no time.
    Appalled (ae8648) — 12/29/2022 @ 6:32 am

    You mean like family separation, which was actually following the law as written? How did that work out exactly? Refresh our memory.

    JF (538d77)

  40. The laptop also showed how much the FBI is like the KGB in how they colluded with the media to censor the truth, Constitution be damned. They had an election to fortify.

    NJRob (eb56c3)

  41. “We are a court of law, not policymakers of last resort.”

    That ship sailed decades ago. It was judges acting as policymakers (e.g., see Reno v. Flores) that has caused much of the border mess even before Biden made it worse. As with Roe, it’s incumbent on the judiciary to fix what they broke rather than codify it as precedent.

    JF (538d77)

  42. I wonder how many are aware that Biden suspended Title 42 for unaccompanied minors more than a year ago. Apparently, migrants are supposed to be too dumb to exploit this loophole. Minors left alone traveling under risky and life threatening circumstances would land most parents in jail, but instead we act as both nannies and uber, dutifully transporting minors to their neglectful parents or “relatives” at taxpayer expense.

    It‘s what we get when an activist judiciary and a leftist administration work together.

    JF (538d77)

  43. #22 nk – You’re welcome — and thanks for all your contributions ot this site, including finding that Miami Herald version of the Dave Barry review.

    Jim Miller (f29931)

  44. Kevin M (1ea396) — 12/28/2022 @ 12:08 pm

    INS v Chadha was a huge mistake.

    It’s black letter law in the constitution.

    What they could do is have all regulations expire in 6 months unless enacted into law by Congress.

    There is something else.

    Congress can pass a law repealing any regulation if they do it within k 6 months of when it becomes final. This bill is exempt from the filibuster rule – only a majority needed in the Senate.

    It wasn’t used at all at first – now it can be used after a change in administration (different president who will sign the bill)

    Sammy Finkelman (1d215a)

  45. #38

    I’ll take typically corrupt over would-be Mussolini. I feel like the GOP favors Mussolini over democratically elected socialism. Get rid of the orange guy and the authoritarian trappings, and this voter will give it another look.

    Binary choice, y’all.

    Appalled (b1ed35)


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