By Matthew Vadum
The 19 states fighting the Biden administration’s plan to end the Title 42 policy that allows rapid expulsion of the illegal immigrants swamping the U.S.-Mexico border are asking the Supreme Court to press on with the case after it abruptly canceled oral arguments a few days ago.
The administration had asked the court to drop the case, arguing it was moot because President Joe Biden’s Office of Management and Budget said in a press release (pdf) on Jan. 30 that it would extend the soon-to-expire pandemic-era emergencies to May 11 “and then end both emergencies on that date.” The current national and public health emergencies were declared by the Trump administration almost three years ago.
On Feb. 16, the court pulled the hearing in Arizona v. Mayorkas, court file 22-592, scheduled for March 1, from the calendar without providing an explanation or an indication of how the justices voted on the matter. Instead of the Title 42 dispute, on March 1 the court decided it will hear arguments in New York v. New Jersey, court file 22-156, a case about whether New Jersey can unilaterally withdraw from the interstate compact that created the Waterfront Commission of New York.
In its Feb. 16 order, the Supreme Court did not dismiss the pending case or indicate that its order of Dec. 27, 2022, that prevented the withdrawal of the Title 42 policy was rescinded.
In March 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued an emergency order under Title 42 of the U.S. Code regarding individuals recently in a country where a communicable disease is present. This allowed the government to promptly return to Mexico, without a formal hearing, anyone illegally crossing the border on the theory that their presence may pose public health risks. More than 2 million individuals have been expelled under the policy.
In their new brief (pdf), the mostly Republican attorneys general of 19 states argued that they are entitled to intervene in the case to challenge the Nov. 15, 2022, ruling of federal Judge Emmet Sullivan, who determined the Title 42 policy was unlawful because the federal government had failed to show that suspending normal immigration laws was justified.
The mere fact that the Biden administration said it planned to end the COVID-19-related emergencies on May 11 does not render the case moot, they argued in a brief filed by the office of Jeff Landry, the Republican attorney general of Louisiana.
The administration’s suggestion that “this case might become moot in May based on a press release issued after this Court” granted certiorari, or review, and agreed to hear the case is a weak argument against moving forward, the states said.
“Such postcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye,” the states said, quoting from Knox v. SEIU, a 2012 Supreme Court precedent.
The administration could change its mind before May 11 and decide to extend the emergencies, the states implied, saying the administration is turning the states into “fortune-tellers” that are asked to predict what the federal government “will fail to do before it fails to do it.”
The federal government’s failure to defend the Title 42 policy “turned the underlying litigation upside-down” and its continuing opposition to the states’ “intervention underscores just how badly it wants to surrender its way to victory,” the brief stated.
The states contesting the withdrawal of the Title 42 policy are Arizona, Louisiana, Missouri, Alabama, Alaska, Kansas, Kentucky, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Tennessee, Utah, Virginia, West Virginia, and Wyoming.
Humanitarian and open-borders groups say the Title 42 policy prevents those fleeing persecution and violence in their home countries from obtaining legal due process when they arrive in the United States; however, the states say withdrawing the policy would flood already overburdened border facilities with even more illegal immigrants.
The states previously told the high court that failing to uphold the policy “will cause a crisis of unprecedented proportions at the border” and that “daily illegal crossings may more than double.”