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Tuesday, the Supreme Court narrowly ruled to block an order by US District Judge Emmett Sullivan ending the use of a COVID-based CDC order that severely restricted asylum seekers from entering the United States. My colleague Bonchie covered the Supreme Court decision here: Supreme Court Rules on Title 42, Delivers Major Blow to Biden Administration. The Supreme Court agreed to hear arguments in the case in February.

This decision dealt a blow to the Biden White House strategy of cramming as many illegal aliens into the United States as possible. Like many on the right, Texas Attorney General Ken Paxton, one of the leaders in the fight against Biden’s war on America, hailed the decision as a victory.

I’m not so sure.

The court will consider two issues. First, did Judge Sullivan get it right in blocking the use of Title 42 as an immigration tool (I think he did as the federal government ended the “COVID emergency” upon which Title 42 depended in April)? Secondly, was the DC Circuit right in ruling that the states have no standing to intervene in a federal immigration case (as border states bear the direct and indirect costs of the Biden idiocy, I think this is patently wrong)?

What was lost in the celebration was a thoughtful dissent by Neil Gorsuch.

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.

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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 policymakersers of last resort

I’m not alone in this. Texas Representative Chip Roy, who no one can call a squish on illegal immigration, agrees.

While acknowledging the dire threat to America in the current uncontrolled immigration across our southern border, we should all be opposed to using public health edicts for other policy goals. I thought we all learned that lesson over the last two years, but it may bear repeating. Likewise, we should be horrified that a policy based on an expired emergency is not only being used but is one of the few effective tools in combatting illegal immigration. It really isn’t possible to oppose DACA, which is based on a memorandum from a Secretary of Homeland Security who left office nearly a decade ago, and support Title 42.

I think Justice Gorsuch is correct. The Supreme Court is using this case as a vehicle to define the degree to which states have an interest in immigration law. So to that extent, it may be a victory.

But, as Justice Gorsuch also notes, the courts should not be forced into policymaking roles. As conservatives, we’ve opposed this consistently when the courts get involved in making up voting laws and the boundaries of congressional districts. Keeping Title 42 in place is wrong because the reason for the regulation has expired. It is wrong because it insulates Congress and the Biden White House from their failure to address the illegal immigration crisis. It is wrong to have the courts dragged into doing what the Legislative and Executive Branches will not do.
Gorsuch’s Dissent

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