Among the tools used by the Trump and, with some apparent hesitation and distaste, the Biden Administrations to prevent entry into this country by non-citizens was an emergency decree, popularly called “Title 42,” premised upon the COVID pandemic. On November 15, 2022, the United States District Court for the District of Columbia invalidated the practice. Several States sought to intervene on appeal to defend the policy, but the U.S. Court of Appeals for the District of Columbia Circuit denied the application to intervene.
On December 27, 2022, the U.S. Supreme Court granted certiorari to review that decision and stayed the District Court’s judgment in the interim. The Court’s action does not mean that it is going to decide the legal validity of the Title 42 policy, merely whether the States can intervene to defend it.
I commend to any reader’s attention Justice Gorsuch’s dissenting opinion (which was joined by Justice Jackson). Justice Gorsuch correctly notes that the public health justification for the exclusion orders is no longer in force. “The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it.” But, as Justice Gorsuch concludes, “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.”((I see some similarity to my observation about the increasing inability of those who feel strongly about an issue to separate the merits of a particular policy from the power of a supportive official to implement that policy. The Misuse of Emergency Powers.))
Jay Bohn
January 12, 2023