This evening, the Supreme Court issued an order in the Title 42 case that stayed the nationwide vacatur issue by Emmet G. Sullivan. The 5-4 decision by Chief Justice Roberts prompted a dissent from Justice Neil Gorsuch who once again showed his independence in voting with his liberal colleagues. Indeed, the order was a classic example of the pragmatist (Roberts) and the purest (Gorsuch) going head to head. The case will now be heard in oral argument in February 2023 and, in the interim, the “Remain in Mexico” policy will remain in place. The order embodies what Gorsuch previously warned was a “holiday” of legal principles during the Covid crisis.
Title 42 allowed the federal government to deny entry to certain aliens to prevent the spread of a contagion (COVID-19). Judge Sullivan issued a nationwide injunction in an earlier decision. The D.C. Circuit upheld the order.
The Court ordered that
This stay precludes giving effect to the District Court order setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy.
It is not clear what the Court meant by “does not prevent the federal government from taking any action with respect to that policy.”
Justices Sotomayor and Kagan voted to deny the stay. Justice Gorsuch wrote a two-page dissent, joined by Justice Jackson.
The Gorsuch dissent was a classic. Gorsuch has long followed principle over convenience or compromise. As I discussed in my testimony at his confirmation hearing, “Gorsuch continued to apply cases with which he disagreed as an appellate judge, particularly cases following the Chevron doctrine.”
Gorsuch has long refused to blindly follow Covid rationales as an exception to constitutional or statutory limitations. In his concurrence in Roman Catholic Diocese in November 2020, Gorsuch wrote:
Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.
In his dissent (joined by Justice Jackson) on Title 42, Justice Gorsuch clearly believes that the holiday has continued:
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. . . .
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.
The two positions between Roberts and Gorsuch captures a more fundamental difference than any disagreement over Title 42. Roberts is the ultimate incrementalist and institutionalist. He tends to resist the Court ordering radical changes as evident in his sole concurrence in Dobbs where he wanted to preserve Roe but uphold the Mississippi law. In that respect, kicking this issue to February is perfectly predictable. “Remain in Mexico” will remain as the Court (and possibly the Administration) works things out.
Ironically, the Biden Administration may secretly relish this result. It allow the President to satisfy immigration advocates and his base by fighting to lift the limitation. Yet, it prevents a further loss of control over entries along the Southern border.
Gorsuch’s dissent is equally predictable. As I noted in my confirmation testimony:
“Judge Gorsuch is a refreshing departure from that trend. He has a record of well-considered writings both as a judge and as an author. This is no blind date. …He is a thoughtful conservative jurist who is guided by first principles of constitutional and interpretive analysis. That is not to say that he is predictable on future votes … He appears driven by his view of core, structuring principles—much like the jurist he will replace. That may take him in directions that are unexpected to the left or to the right. However, if his prior writings are any guide, it will be a direction that he believes is dictated by legal principle and not personal predilection.”
Gorsuch recognizes that the Biden Administration’s opposition to Title 42 may fuel the flood of illegal immigration across the Southern border. However, he is bound by oath to apply the law, not tailor the law to fit political or policy demands.
That does not mean that Roberts is wrong in scheduling a full argument. The Court is merely allowing a full argument on the question and freezing the status quo until that time. However, no order more captures the fundamental divide between these two conservative jurists.
33 thoughts on “The Pragmatist Versus the Purist: Supreme Court Stays Title 42 Order on “Remain in Mexico””
This is what’s wrong with the court and our government, we have forgotten, or never knew, what the purpose of government is and how it functions to that purpose. The purpose of government must be established first indicating what is being governed and what is the governor. The purpose of the Government of the united States is collective decision making of the States as the Union to make the decisions of a free and independent state as expressed in the last paragraph of the Declaration of Independence; levying war, concluding peace, contracting alliances, establishing commerce, and any other act or thing which an independent state may by right do. This makes collective decision making what is governed and the governor is the legislative process to reach a predetermined majority consensus of all the states as the Union.
Once an agreement is reached between all the interested parties, then that agreement for assembly and function are formalized in a Constitution and ratified by all parties to the agreement. To “constitute” means to form or assemble, and a constitution as a participation versus compliance agreement must establish the benefits, privileges, rights of participation in decision making and cost of membership in the Union which is formed by the constitution. There must also be a conflict and dispute resolution clause as the last resort on appeal for grievances which may arise between the members of the Union, and lastly there must be a clause for amending the agreement, because once formalized in a constitution the agreement is rendered unalterable by any means, so to amend the agreement there must either be unanimous agreement, or a sufficient number to constitute an agreement between all the interested parties.
All the components of government have been identified above, we have congress as a legislative assembly, we have the States as the members of congress, we have the Supreme Court to adjudicate all disagreements and grievances between the States, we havw the process to operate congress to make the collective decisions of a free and independent state formed by the Union of the States, and the mode of determining what each State pays for the expenditures the States created as a Union. The States participate in making the collective decisions which they then agree to comply with, and note, those decisions are only binding on the States themselves.
This is where we have to start, first to understand our government, how it’s assembled and how it functions, and now how we must fix our government to again serve the purpose for which it was originally established. So, most will say that I left out the executive departments and the administration of our government. My answer would be that I haven’t overlooked the executive function of government at all, because our system of government is legislative, whether it’s the Confederation originally established, which is a discrete democracy between the States, or the Confederated Republic which was added to the Articles of Confederation to address the disparity which existed between the States in their population and wealth by normalizing the States by a common factor, their proportion of the aggregate population of the United States, and in Madison’s words in Federalist #51, in a Confederated (compound) Republic, which the United States is, the legislative authority necessarily predominates.
In the Confederated Republican assembly constituted by Article 1 of the Constitution of the United States, there are two coequal branches, the House of Representatives and the Senate, although the Senate has the power of concurrence over all decisions made by this assembly, meaning it takes an agreement between the States by proportion and the States as equals to assent to any measure legislated which manages how the States interact with each other to form and maintain the Union. This forms legislative checks and balances between the States, where the large States control the scope and cost of all measures and decisions, and the small States control concurrence for those decisions made by the popular branch. Today it only takes 9 States for form a proportional majority consensus in the House of Representatives, but that leaves 41 States to block any agreement made by those 9 largest states. This, obviously, does not give the 9 largest states the power to force their priorities through the legislative process, but it does give those 9 largest states the power to block any measure which may have a majority consensus of the 41 smaller Stares. In this way a balance is formed making the large and small states dependent on each other to make laws, collective decisions for how the States interact with each other.
So we now return to the question; if our governing system is legislative, how are the executive and judicial departments assembled and how do they function?
To answer this question we must return to Articles 5 and 9 of the Articles of Confederation, which by the way were not amended by the Constitution of the United States but preserved in Articles 2 and 3 of the Constitution of the United States. The easiest way to understand this is by reviewing Federalist #’s 62 – 66, “The Senate”, where Madison covers the role of the in the Confederate Republican assembly established by Article 1, Jay covers the Confederate assembly as reestablished in Article 2, and Hamilton covers the judicial powers of the Senate established to determine all impeachments, but how the Senate was assembled and how it functioned to reach a supermajority consensus remained unchanged.
Today the Articles of Confederation are completely ignored and passed of as a failure to produce a collective government, but if you actually read the preamble of the Constitution of the United States, it says to form a More perfect Union, meaning they considered the Union formed by the Articles of Confederation perfect, which must have been the case because they only amended Article 8 & 13 of the Articles of Confederation with only minor changes to Articles 5 and 9 to establish continuity and stability of government through term lengths and offset elections for Senators, form a permanently seated Court to adjudicate conflicts and disputes between the States and for the States to seek redress for their grievances, establish the executive departments as a unique department, still under the direction and control of the States as the Union, to allow the Senate to recess along with the whole congress, to be called into session when their consideration is necessary.
When we review Article 5 of the Articles of Confederation we find the requirements to assemble, operate, and make determinations to make the decisions of a free and independent State; levying war, concluding peace, contracting alliances, establishing commerce, and any other act or thing an independent State may by right do; when we review Article 9 we find how to assemble the Supreme Court and how the court functions, and how to assemble the executive department to manage the affairs of the United States under the direction of the States as the Union, by a “Committee of the States”, the current Senate.
There are only two legislative processes in the senate assembled by the Confederate principle, a discrete democracy of the States as the Union, the first is a 2/3 majority consensus of the States for all treaties, which covers all agreements and matters of the United States as they interact with foreign nations or entities, the second is by a ranked list where all the States participate in forming an aggregate ranked list, then the top 5 choices on that aggregate list are deliberated by a quorum of the States, then the States make a determination by vote, 1 vote per State, and a majority of all the States is necessary to the choice.
When we review Article 2 of the Constitution of the United States we find both these legislative processes established for selecting the President and Vice President, and for making appointments for vacancies which occur in the executive and judicial departments. If you were wondering, the Vice President as the President of the Senate has no role in the deliberations or the determinations made in the Senate in the Article 2 assembly, because the majority consensus requirements are either 2/3 of the States by their Senators present, or a majority of all the States, which precludes tie votes, therefore the President of the Senate has no vote in this configuration of the Senate.
Food for thought: Since the appointment process in Article 2 of the Constitution of the United States is only for vacancies that occur, not for the assembly of the Supreme Court or the Executive Departments, the States as the Union have the power to raze and reassemble any executive department and even the Supreme Court at will, as long as they comply with their agreement for assembling those departments of government as established by Article 9 of the Articles of Confederation. And when replacements are made for vacancies, the President only makes a list of qualified candidates through nomination, a number of nominees determined by the Senate by rule for their proceedings, then the States make the choice by vote, 1 vote per State, and a majority of all the States is necessary to the choice, then that choice is appointed to fill that vacancy.
When we review the function of the court, as established in Article 9 of the Articles of Confederation, we find that the congress is the last resort on appeal for all conflicts and disputes between the States, and it is congress to which the appeal must be made, then congress transmits that grievance to the court to be adjudicated, the court does not choose which cases it hears, and the court doesn’t choose the justices which hear the case, because there must be no less than 7 and no more than 9 justices seated at any time, and then the 5 justices that hear and decide the dispute are chosen by lot starting with the petitioner’s, the Chief Justice is not counted in that number and does not hear and decide the matter, because the Chief Justice must preside over the court to ensure that the court is properly assembled and functions properly.
Long story short, or long in this instance, the Supreme Court does not oversee our government or determine the constitutionality of laws, that would create mutability of government, only the States as the Union assembled in Congress and governed by legislative processes to reach a majority consensus can make and/or interpret laws. Remember to constitute means to form or assemble, so the only thing that can be unconstitutional is the assembly and function of congress as a legislative assembly of the States to reach a majority consensus of the States as the Union, laws that are properly legislated by a properly assembled congress cannot by definition be unconstitutional, and also remember, the decisions of the Supreme Court are as the last resort on appeal, meaning once a decision is made for a matter adjudicated by the court, it can never be reversed, that limits the jurisdiction of the court and the decisions that can be made by the court to only conflicts and disputes between the States or citizens of one State against citizens of another, or grievances for laws which may be properly legislated but disproportionally affect or disenfranchise a State or States.
Yes, this is a long dissertation, but as screwed up as our government is today, someone has to slap the people collectively back into consciousness!