Supreme Court Dismisses Case on Pandemic-Era Immigration Measure
The Supreme Court on Thursday dismissed an attempt by Republican-led states to uphold the pandemic-era immigration measure known as Title 42.
The court’s brief order was one sentence long, instructing an appeals court to dismiss the states’ motion to intervene in the case as moot. The move was almost certainly prompted by the end of the health emergency that had been used to justify Title 42.
In a brief filed in February, Solicitor General Elizabeth B. Prelogar told the court that “absent other relevant developments, the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot this case.”
In a sign that the court was inclined to agree, it canceled arguments in the case about a week later.
Title 42 had allowed migrants who might otherwise have qualified for asylum to be swiftly expelled at the border with Mexico. The policy, introduced by the Trump administration in March 2020, has been used to expel migrants — including many asylum seekers — about 2.5 million times. The measure was lifted on May 11.
The question the court had agreed to decide, and now will not, was whether the states that had sought to keep the measure in place were entitled to pursue their challenge. Ms. Prelogar wrote in February that “the mooting of the underlying case would also moot petitioners’ attempt to intervene.”
Justice Ketanji Brown Jackson dissented on Thursday, saying she would have gotten to largely the same place by a slightly different route by dismissing the case as “improvidently granted.”
Justice Neil M. Gorsuch used the occasion to issue eight pages of reflections on “the disruption we have experienced over the last three years in how our laws are made and our freedoms observed,” referring to the pandemic.
Justice Gorsuch, joined by Justice Jackson, issued a dissent in December when the court agreed to hear the case.
The legal question that the court agreed to address, regarding the states’ intervention, he wrote at the time, “is not of special importance in its own right and would not normally warrant expedited review.”
By issuing a stay while it addressed that question, he added, the court effectively took an incorrect position, at least temporarily, on the larger issue in the case: whether the pandemic justified the immigration policy.
“The current border crisis is not a Covid crisis,” Justice Gorsuch wrote. “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.
In his statement on Thursday, Justice Gorsuch made some more general observations about the impact of the pandemic on the rule of law.
“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country,” he wrote. “Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on.”
He added that “it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagree.”
The lesson, Justice Gorsuch wrote, is that “fear and the desire for safety are powerful forces,” adding that “even the ancients warned that democracies can degenerate toward autocracy in the face of fear.”
He concluded that the courts should be cautious. “At the very least,” he wrote, “one can hope that the judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another.”