In the beginning of the year, I commended any reader’s attention to Justice Gorsuch’s dissenting opinion in Arizona v. Mayorkas, a Supreme Court case involving a challenge to “Title 42” orders. (The specific issue was whether the court of appeals should have allowed several states to intervene in the case; the court had denied the motion.) I said then:
Justice Gorsuch correctly notes that the public health justification for the exclusion orders is no longer in force.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.”
The Title 42 orders were premised upon the existence of the COVID-19 emergency, which has now been terminated. As a result, the Supreme Court vacated the order denying intervention and remanded to the court of appeals with directions to dismiss the motion.
Gorsuch issued a statement in which he recounted the “head-spinning” procedural history in detail “because it is so typical . . . [n]ot just as an illustration of the quandaries that can follow when district courts award nationwide relief, . . . [but e]ven more importantly, the 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.” Justice Gorsuch proceeds to criticize the plethora of COVID emergency decrees I have previously discussed. Because I perceive much agreement with what I have said, I naturally find the discussion profound.
Jay Bohn
June 5, 2023