(LibertySons.org) – Then-President Donald Trump used a little-known Public Health statute, colloquially known as Title 42, in March of 2020 as the pandemic raged to stop immigration at the Southern border and expel would be immigrants and asylum seekers back to Mexico. The Biden Administration announced it would end Title 42 in May 2022, but a Louisiana US District Court judge stayed the action. Then, a senior DC US District Court Judge ruled that Title 42 expulsions violated the Administrative Procedure Act, ordering an immediate end to the policy.
The attorneys general of several states, led by Arizona, filed an appeal in the DC US District Court, listing the case as Arizona v Mayorkas, but the court denied them standing. So the states made an emergency appeal to the Supreme Court, asking for a stay to the end of Title 42 and an expedited hearing. Chief Justice John Roberts issued the stay, and the Justices voted 5 to 4 to hear the case. In December 2022, the Court set oral arguments for March 1, 2023. Yet, in what some interpret as a shocking decision, the Court never heard arguments and summarily vacated the case, allowing Title 42 uncontested and returning the action to the DC District Court for dismissal.
Making a Case Moot
Solicitor General Elizabeth B. Prelogar filed a brief on February 7, 2023, advising the Justices that the Biden administration was announcing its intent to allow the pandemic health emergency to expire on May 11, 2023. She stated that “the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot this case.”
Her brief asked the Justices to vacate the stay and remand the case back to the District Court with instructions to dismiss once the emergency expired — which was precisely what happened on Thursday, May 18, one week after the national health emergency ended.
Gorsuch Made a Statement
Justice Neil Gorsuch joined with liberal Justices last December in voting against hearing the case. He issued a three-page dissent, stating that courts have no business enforcing executive orders “designed for one emergency” simply because lawmakers “failed” to properly address a different one. He emphasized that the courts aren’t “policymakers of last resort.”
Even though Gorsuch ultimately agreed with the Court’s decision on Thursday, he issued an eight-page dissenting opinion addressing his many concerns regarding the case. He believes Americans “may have experienced the greatest intrusions on civil liberties in the peacetime history of this country” during the pandemic.
Gorsuch cited the lockdowns, noting that Congress and state legislatures fell silent as state and federal executives issued unilateral orders. He said that the courts “allowed themselves to be used” to drag out emergency health decrees/mandates — a kind of “emergency-lawmaking by litigation.”
Gorsuch concluded by writing that while situations sometimes merit executive action, “emergency decrees promise to solve some problems” while generating many others. He warned that government via “indefinite emergency edict” risks America’s democracy and civil liberties.
~Here’s to Our Liberty!
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