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.
“Title 42 allowed the federal government to deny entry to certain aliens to prevent the spread of a contagion (COVID-19).” (JT)
That the pandemic is over is the alleged reason for dropping Title 42.
And yet: The CDC is again recommending social distancing and wearing masks. And the administration now requires visitors from China to be tested for Covid.
So which is it?
Or are we now forbidden from asking questions about such obvious inconsistencies?
Jonathan: As we close in on the end of the year there are so many issues you have not discussed. Like the J.6 House Committee report, its findings and recommendations. Curious you have not discussed all the legal issues involved.–especially because early on in several columns you questioned the legitimacy of the Committee, its mandate and the testimony of key witnesses. So far as I can tell your last column on the work of the J6 Committee was back on 10/17 when you criticized them for issuing a subpoena for Trump’s testimony. But Trump has weighed in on the report. He says the Committee was composed of “sick people” and “Marxists” and the report “did not produce a single shred of evidence” that he wanted violence.
Everyone on this blog knows my views on the J.6 Committee work. But one thing about the report stands out that needs some discussion. The Jan. 6 transcripts reveal that a lot of people around Trump sought advance pardons for their roles in the Jan. insurrection. Trump even considered “advance pardons” for all the people charged or could potentially be charged. Trump now says that if reelected in 2024 he will pardon everyone convicted in the attack on the Capitol. Fat chance!
Republican members of Congress who participated in the attempt to overturn the 2020 election sought advance pardons according to the J6 report. Reps. Matt Gaetz, Mo Brooks, Louie Gohmert, Jim Jordan, Marjorie Taylor Greene all sought pardons. The Q is why all these members of Congress would seek advance pardons from the then president if they did nothing wrong? Because they knew they violated the law–working with Trump allies to overturn the 2020 election by force and violence. Will these people be prosecuted by the DOJ? I hope so because they and Trump are a continuing threat to our Democracy. What say you about the potential criminal liability of the above named members of Congress?
Gorsuch won’t make immigration policy for the other two branches, but it’s clear the liberal justices will.
Gorsuch is once again signaling to Congress “Do your job — we’re not going to do it for you”. Congress needs a firm deadline to pass Immigration legislation, or it will never get done. CJ Roberts must also direct all lower court Judges to defer on any cases involving Immigration law while Congress is working the delicate issue.
The last time we came close to a deal in the Senate (Feb 2018) under a DACA cutoff-deadline of March 5 2018 given by the President, Federal Judge Jon Tigar destroyed the legislative motivation by taking the deadline off the table. We got nothing. Let’s learn from our mistakes.
Jonathan: I agree with Justice Gorsuch. But it appears some other other conservative Justices want to take up the cause of GOP controlled states in their fight with the Biden administration over immigration policy. It’s a “policy” dispute not a legal one. Last month a federal judge said Title 42 was “arbitrary and capricious” and ordered the Biden administration to end it. Current circumstances make Title 42 unwarranted. That should have ended the issue. But the right-wing ideological wing of the Court wants to make “policy” for the country. That’s not the role of the Court the danger of the current case.
I support the application of Title 42 as a tool to curb unrestricted entry. I also share public health concerns that arise when people are not effectively screened or immunized, and allowed to enter the country. On the other hand I fervently oppose the Court trying to usurp the prerogatives of elected officials and setting policy instead of ruling on the Law.
The only justification for the Court taking any action can be how the policy was put in place. If it relied on the Administrative Procedure Act, then there is an argument to be made that the comment period has to be observed.
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I understand the need to lift all covid-era “holidays” or “sabbaticals”, but we have a serious crisis at the border, and while the court’s job is not to worry about anything outside of arguments presented, I’m glad the court voted in favor of keeping Title 42 in place for now regardless.
In Robert’s Obama Care self serving ruling, it became clear he is a “Policy” maker not a jurist.
If we don’t punish this administration for dissolving our border, the next democrat administration will do the same, and the next, and the next. “Demographics is destiny”.
The Biden administration didn’t “dissolve” the border. Who is the “we” who is going to “punish” the Biden Administration, anyway? You don’t speak for most Americans. You need to stop believing the alt-right media lies you’ve been fed. Until Congress changes immigration and asylum laws, people from South America can show up and seek asylum. The problem is, they all want to come here because we have a higher standard of living, and they’ve all been coached to claim they are victims of violence, drug cartels, whatever.
Ian,
Remember that infamous Hot Mic moment where Obama quipped about how Biden can screw things up?
You are right….and confirms that the United States of America is doomed to failure exactly because of people like Judge Sullivan and Joe Biden….and all those useful Idiots on the Far Left.
The one thing I ponder but cannot come up with an answer is if Kagan and Sotomayor and that new Girl voted with Gorsuch on Principle or Politics?
I can accept his vote and Opinion because he is a Man of Principle but the others I do not have such faith in knowing their past.
There is no way anyone can in any way ever convince me that having Tens of Millions of Illegal Aliens or un-vetted foreigners in this Country is a good thing.
Even Trump got this one right when he said entrance should be through a doorway….and not by climbing over a wall.
I agree with Gorsuch’s reasoning in this case, and, to be fair, most. However, I will never understand his reasoning in Bostock v. Clayton County. That is a case that plainly shows the Court came up with a result they wanted and worked backward to try and explain it. It’s a stain on his reputation that he authored that.
Caleb-Matt, I agree. Gorsuch’s opinion in Bostock was demolished by Alito’s dissent. Hard to understand why he came out as he did. And now his decision is being used to require schools to allow boys on girls’ sports teams and all sorts of other absurdities that have never been mandated by law. If it hasn’t yet, it will soon be used to require schools, hospitals and doctors to practice “gender-affirmative care” for minors, including on-demand social transition, puberty blockers, sex hormones and surgery. Gorsuch has a lot to answer for in this area.
You get a big F on this one, Professor. Title 42 expulsions and “Remain in Mexico” (“Remain in Costa Rica” under Obama), where you don’t get expelled because you weren’t allowed in, are two different programs
In addition I like the Gorusch is consistent in this Constitutionalism but he’s just plain wrong on the facts in this case. Although the Covid crisis has passed within this country, the contention re Title 42 is that these millions of people have not been checked for and vaccinated against Covid. Covid is not a problem if you take precautions but how do you know if these 10,000,000 or more people have done so
Our country is kaput.
Stolen elections have consequences.
The 2020 election wasn’t stolen–get over it. The only one trying to steal an election was Trump. He stole the election in 2016 by colluding with Russian hackers to spread lies about HIllary Clinton on social media, and tried to steal 2020, even though every poll predicted he would lose, and he never got even a 50% approval rating.
lol
When Biden stood on the stage plugging away for votes. He told America what his agenda would be, and what he would do. So people like me, or not surprised by what we’re seeing, he stood on the stage and said he would do this !! I’ve always been conservative in my thinking. I can’t really say that I consider myself a republican per se, that would put a Republican bumper sticker on my pick up or SUV. Even though I’m born in ALASKA and raised here in WYOMING.
But,
the Republican party is the only party I can vote for. I could never vote for the Democrat party that is for sure, and I absolutely despise the majority of the Republicans. Because they don’t have my best interest or other people that are conservative in their thinking, best interest at heart. If that made any sense. I wish to God that we could have a real conservative party. I know that I will never live long enough to see that happen even though I’m 60.
Maybe, Just maybe , between now and a 100 years but by then my country may not still be holding together. We’re already a nation in name only and not the country that I was born in and grew up in. There are places that I’ve been with my wife here in my own country that I already don’t even feel like I’m in America anymore. And once again, these are places in American states!!! and now this administration wants to let in as many people as they can that don’t speak our language that don’t have anything in common with us, and the vast majority don’t read English.
Look what this will do to our already screwed up US PUBLIC SCHOOL SYSTEM. Look what it will do to our hospitals. Look what it will do to our jails and prisons. Because there are places like where we live, they will lock you up in a heartbeat. And folks like my wife Darinda and me, like it that way. (She comes from a well-known Wyoming founding family. Law-enforcement / judges / Oil&Gas folks. What is the term back east? “Landed Gentry?” I believe.
The only reason they’re coming here is because they’re poor. Financial refugees. I will close with this. We all watched what Biden did when it came to shutting down Afghanistan, and how many thousands and thousands of Afgani’s he brought into this country that will never become Americans like we are. Men that are smarter than me have said, even 100 years from now, Those type of Muslims will still be exactly like the ones that walked off the planes. Jordan Peterson for one.
A’lot of them will be looking to take down this country from within. So far, I have actually been shocked that something hasn’t happened yet by some of the ones that I’ve come across. And I think you know what I mean. A terrorist attack. But I have seen and read many articles of illegals behind the wheel, killing Americans on our highways. I and my wife have actually broke down and cried for our country. Because our boys will not know the country that me and my wife was born in. They will never know it, Like we knew it.
Well, At least Sweden got its head out of its rear end and voted in a vast majority of a conservative type government. They finally had enough of seeing their women being raped, left and right, and the city of Gothenburg being labeled the rape capital of Europe. They finally had enough of seeing police cars getting blown up right in front of police stations. They are shutting down, Mosques, left and right. And they are starting to deport Muslims by the plane load. I follow Peter Sweden and Paul Joseph Watson’s news letters titled, Bare Naked Islam.
You must be my brother from another mother. I said BEFORE the mid-terms, that if the Democrats were not wiped out, you can kiss the country goodbye. The biggest offenders and destroyers of the culture are the media, academia, and out-of-control government. The DEEP STATE (take note of the 51 people who said Hunter Biden’s laptop was Russian disinformation) carries the water for any shortcomings that the majority Dems may have at any given point.
I agree, my kids and grandkids will never experience the great country I was blessed to be a part of for my sixty-six years.
Due to the lack of an honest media we have a president who argues against Title 42 remaining in effect, does everything he can to make the border porous, and yet has his spoke-ditz say things like the border isn’t open and that the President will follow the Court’s decision (he never does until it becomes totally untenable not to).
We have a president that argues that we need to pay off student loans under the Heroes Act due to covid and then says we need to end Title 42 because covid is over…and the media doesn’t say a peep. You cannot tell me that Biden and his team don’t want to harm this nation because if that is your argument then tell me why he will not secure the border. The vast majority of us want the border secure, almost all Republicans want the border secure, many Democrats want the border closed and yet they will not close it????
We have tapes of Obama saying a nation needs a secure border. We have tapes of Biden saying we need a secure border. We have tapes of Hillary saying we need a secure border. We actually have tapes of Schumer saying we need a secure border. Now there isn’t one national Democrat that will utter this truth.
Inflation will end, crime will subside, the Ukraine War will reach a terminus, we will someday return to pumping oil and gas, but the country will never be the same after 10 million unemployable foreign nationals enter our country in 2-4 years and never leave. This is
I don’t think this (Title 42) will have as much impact on the crowds at the border as envisioned by some.
Rather, perhaps Biden, et al, should look at the provision that gives them one year, -yes, repeat: one. full. year. –after illegal entry into the country,– to come up with a good reason why they should be considered “refugees” in need of asylum. 8 U.S.C. 1158(a)(2)(B)
Lin, I agree with you that the role of Title 42 in turning away illegal immigrants is generally overstated. At the same time, dropping it would be likely to increase the numbers crossing the border, because of the perception that the border is even more open.
The Court’s decision is peculiar. The only question it will decide this term is whether the States may intervene; it will not address itself to the merits of Sullivan’s holding. It stayed Sullivan’s order stopping the application of Title 42 but at the same time said it is not constraining what the administration can do regarding the application of Title 42. It seems to me this decision is intended to remove the judiciary’s responsibility for the application or not of Title 42; it is meant to take away Biden’s argument that he is merely following the orders of a court.
Nations, entire civilizations (as in Western) can legally commit suicide by who they elect.
That is where we are.
The communists (liberals, progressives, socialists, democrats, RINOs, AINOs) are direct and mortal enemies of the Constitution and America; they have endeavored mightily to destroy America through adverse “immigration” which was never intended by the Founders. The Naturalization Act of 1802 was in full force and effect in 1863 and America’s population should have never become a “discordant intermixture.”
________________________________________________________________________________________________________________
United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien
being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…
_________________________________
“The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”
– Alexander Hamilton
_________________
“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
– Declaration of Independence, 1776
We never elected the criminal. 6 swing state 3:06AM – 4:10AM spike votes for the criminal….
That doesn’t happen without election theft.
Joe Biden, the demented puppet occupying the Oval, is flying off to St Croix USVI for yet more luxury vacation time with his sick, screwed up family while the country suffers in winter storms, out of control inflation, crime, and the burden of his sick policies. Worst president ever. FJB.
Title 42, Schmitel 42. Who freakin’ cares? I see…instead of TEN MILLION illegals, we’re only gonna get EIGHT MILLION. Well, I’m feelin’ better already. Gimme a break…
Randy, not law school text book reasoning, analytical logic or legal precedence…but right on the damn money!
HEAR HEAR!! I couldn’t agree more with you my friend.
Ok, while Turley discusses the decision… the one important fact remains which SCOTUS alluded to….
There is nothing stopping Congress and then Biden to implement some sort of law which would handle the mess that Biden created.
The problem… is that for the Dems, it would create a huge political storm with the progressive Left.
So SCOTUS is essentially saying to Biden … You can fix this yourself.
-G