Deeply Divided Supreme Court Maintains the Covid-Crisis Fiction for the Sake of Border Security

Lifting Title 42 would cause mayhem at the border, but preventing such a crisis is the duty of the president and of Congress.

I n a closely watched case on its emergency docket, a sharply divided Supreme Court issued an order on Tuesday night that keeps Title 42 in place for the next few months. In the meantime, the justices will give further consideration to a plea by 24 states that the provision be maintained until such time, if ever, as the federal government addresses the ongoing border catastrophe.

“Title 42” is shorthand for a federal statute — specifically, section 265 of Title 42, U.S. Code — which empowers the government to close our borders to non-Americans due to a communicable-disease emergency. In this instance of course, that “emergency” is the Covid-19 pandemic, even though it long ago ceased to be a true emergency, having passed on to the endemic stage. (At this point, nearly three years after its early-2020 emergence, Covid has become a disease that, like influenza, will be with us for the foreseeable future. It can be dangerous for some demographics — particularly the elderly and those with certain comorbidities — but it was already under control over a year ago, as evidenced by this typically thorough analysis by Jim Geraghty from October 2021).

Why is Title 42, which relates to communicable diseases rather than foreign intruders, still relevant? Because President Biden refuses to execute the laws faithfully and enforce the border, and because Congress, in its insidiousness and dysfunction, fails to pressure him to change course. Since border security is a policy issue for the political branches, not a legal issue for the non-political branch, why has the border crisis been dumped in the Supreme Court’s lap? That is what last night’s four dissenters, led by Justice Neil Gorsuch, would like to know.

Here’s some necessary background to understanding the magnitude of what the Court has been asked to wade into.

In November, U.S. border agents apprehended a mind-blowing average of 6,785 illegal aliens per day attempting to cross the southern border (a pace of about 2.5 million per year — a record that stands out even in the Biden years of border deconstruction). The Department of Homeland Security, which notoriously soft-pedals what is actually a foreign invasion, concedes that if Title 42 were lifted, the number of these “encounters” between law-enforcement and illegal aliens would swell by a factor of two to three — to approximately 18,000 per day (an annual pace of roughly 6.6 million per year — a population significantly larger than every major U.S. city except New York).

It must be noted, moreover, that even these jaw-dropping numbers materially understate the crisis, for they address only “encountered” illegal aliens. (The government uses this euphemism to obscure the fact that it is releasing illegal aliens into our country, rather than detaining them as federal statutory law requires.) An additional estimated 30 percent of those “encountered” sneak into the country without being apprehended. As explained by Andrew Arthur of the invaluable Center for Immigration Studies, there were nearly 600,000 of these “got aways” in fiscal year 2022 (which ended in September), and then another 64,000 in October. This “got away” number, too, will multiply if Title 42 is rescinded with no actual border-security policy to replace it. That would bring the anticipated total number of annual illegal-alien entries to over 7 million — probably well over. That would be on top of the more than 6 million illegal aliens who have entered the United States since January 2021, when President Biden took office and recklessly dismantled the Trump border-security policies. This total of over 13 million would be larger than the populations of over two-thirds of the countries in the world.

The last vestige of border security, Title 42, is a medical pretext, not a security policy. Biden maintained it because of the political heat he has taken for eviscerating the border. The president obviously rationalized that this persistence of Title 42 enforcement, though watered down from the provision’s Trump-era application, was in keeping with the Democrats’ infatuation with Covid lockdowns. Yet, Biden and mainstream Democrats are beholden to a radical transnational-progressive base which, in its jihad to fundamentally transform the United States, does not believe this country should have enforced borders. Consequently, Biden has been trying to rescind Title 42 since April 1, when the CDC issued a directive that the provision’s application would be terminated as of May 23.

That directive was stalled by a lawsuit brought by the states who are now pleading with the Supreme Court in connection with a different, albeit obviously related case. It is the interplay of these two cases (which Rich and I discussed in the latest episode of The McCarthy Report podcast) that explains last night’s ruling — though it does not justify the ruling, a feat that was not attempted by the five justices in the majority (Chief Justice John Roberts, joined by justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett).

For what it’s worth, I believe two factors explain the Court’s temporizing decision: The justices resent being toyed with, as the Biden administration has toyed with them and other federal courts, and they recognize that the Court is being set up to be blamed for the catastrophe that is sure to follow the lifting of Title 42, even though the real culprits are the derelict political branches.

Make no mistake, though. Justice Neil Gorsuch hit the nail on the head in the conclusion of his dissent, joined by Justice Ketanji Brown Jackson:

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.

To recap how we got here is to pile fiction atop fiction.

In a commonsense republic where the Constitution was operating as designed, the president would regard homeland security as a top priority. He would use the powers vested in him by the Constitution, in addition to the vast authority Congress has delegated to him by statute, to keep foreign threats at bay, including by excluding illegal aliens, particularly during a pandemic. When a communicable-disease crisis had passed, the president would promptly rescind any emergency exclusion he had imposed to address it, but border security — including the exclusion and detention of illegal aliens attempting to enter — would remain the norm, and as a result there would not be hundreds of thousands of aliens attempting to enter illegally each month.

Alas, we no longer have constitutional governance and a president who faithfully carries out his duties. In their place, we have the administrative state and Biden. So instead of securing the border, the political branches abdicate to an administrative agency, the Centers for Disease Control and Prevention (CDC). Such agencies operate under a progressive regulatory morass governed by the Administrative Procedure Act (APA), which has supplanted the Constitution in many vital matters.

The Trump-era CDC imposed Title 42 when Covid emerged as a crisis in March 2020. But it did so under the APA, which prescribes a notice-and-comment period before administrative rules become final. As a result, the Title 42 imposition did not run this gauntlet and become a final rule for about nine months, even though it was being applied to exclude aliens during that time.

What is imposed under the APA can only be dismantled under the APA. That was the argument 24 states made to Louisiana federal judge Robert Summerhays, a Trump appointee. On May 20, three days before Title 42’s termination was to take effect, Judge Summerhays issued a 47-page ruling, concluding that the Biden CDC had unlawfully failed to comply with the APA’s notice-and-comment mandates in attempting to rescind the provision. Perhaps so, but interestingly, no one claimed that a Covid emergency still justified keeping Title 42. The states’ argument, and the court’s emphasis, was that, because the Biden administration lacked a workable border-enforcement plan, the influx of alien hordes that rescission would loose on the states — imposing crushing burdens on their education and medical facilities, and taxing their law-enforcement capabilities — would cause disastrous, potentially irreparable harm.

In the temper of the time, with the midterms looming and Biden dogged by criticism over the appalling deterioration of border security, administration officials did not race to challenge Judge Summerhays’s decision. They were content to appear to be opposing the ruling while allowing Title 42 to remain in force and slow-walking the appeal, which could have taken over a year.

Naturally, the Left was not content. Even before the states challenged the lifting of Title 42, the ACLU and immigration activist groups found a collection of aliens who brought a class-action lawsuit against Biden’s Department of Homeland Security. They claimed that the Title 42 directive violated immigration law’s asylum provisions and that, because there were conceivable alternatives that were less burdensome than a sweeping exclusion, the directive was arbitrary and capricious under the APA.

Unlike the state plaintiffs in the Louisiana case, these alien plaintiffs were in line with the true Biden administration and Democratic Party position on Title 42. Furthermore, by filing their suit in Washington, D.C., they struck gold when it was assigned to Judge Emmet Sullivan, a Clinton appointee notoriously hostile to the Trump administration (which, again, had initially imposed Title 42).

With the Biden administration’s now feeling heat from its base, the aliens’ case became a collusive lawsuit — the “opposing” parties (i.e., the plaintiff aliens and the defendant Biden officials) were in essential agreement that Title 42 should be rescinded. Given the fortuity of a judicial collaborator in the mix, the Biden administration sensed an opportunity to get Title 42 lifted in a manner that would (a) obviate the need to comply with the APA in the states’ case before Judge Summerhays, which was now on appeal before the Fifth Circuit; (b) show the Democratic base that it had deviously rescinded Title 42 despite opposition from red states; and (c) dupe the rest of the country into believing that Title 42 had to be lifted, despite the border chaos, because a ruling by Judge Sullivan embodied “the rule of law,” with which the administration had no choice but to comply.

True to form, Sullivan played his part. On November 15, he issued a 49-page ruling, holding that Title 42 should never have been imposed in the first place and now had to be lifted so that the “migrants” could exploit their statutory right to seek asylum. (The asylum system runs rampant with frivolous applications and fraudulent claims.) Sullivan subsequently, and with theatrical “great reluctance,” gave the Biden administration a five-week delay to prepare for an “orderly transition” to the anticipated border chaos. The deadline was now December 20.

As you’d expect, the states went ballistic. Nineteen of them, led by Texas, raced to the D.C. Circuit Court of Appeals, asking to intervene in the aliens’ case in order to appeal Judge Sullivan’s ruling. On December 16, four days before Title 42 was to be lifted, a three-judge panel (consisting of appointees of Obama, Biden, and Trump) issued a cursory order denying the states’ application, rationalizing that they had waited too long to intervene. This was the order that triggered the states’ emergency appeal to the Supreme Court — initially, to Chief Justice Roberts, the circuit justice for matters arising in Washington, D.C., who referred the matter to the full court.

The Court’s majority was bound to take umbrage at the collusive nature of the aliens’ lawsuit, and the manner in which the Biden administration exploited it to undermine the ongoing litigation in the states’ lawsuit and thus sidestep APA compliance. The Court has seen such deceptive practices from the administration before, to the point that Roberts had previously labeled the tactic “rulemaking by collective acquiescence.” The chief justice borrowed that mouthful from Ninth Circuit appellate judge Lawrence VanDyke, who detected it in a case involving the so-called public-charge rule, a Trump-era directive to enforce long-standing immigration law that excludes aliens likely to seek subsistence on public welfare. (In that case, the Biden administration used a consent decree to drop the rule without complying with the APA and sought to block 13 states who supported the rule from intervening.)

Again, the irony: No one in the Supreme Court emergency litigation is claiming that there is a factual basis to maintain Title 42 because of some medical necessity. Instead, five of the justices are sufficiently perturbed by the Biden administration’s gamesmanship, and by the specter of a border crisis’s becoming a border catastrophe, that they have decided to grant the states a further review. The question the Court will consider is a narrow one: not whether Title 42 merits being retained as policy, but instead whether the states should have been permitted to intervene to appeal Judge Sullivan’s ruling.

The dissenters, though, are not fooled: The Court is doing border policy, not law. Justices Sonia Sotomayor and Elena Kagan did not elaborate on why they were dissenting and did not join Justice Gorsuch’s dissent as Justice Jackson did.

The latter pairing is intriguing: Gorsuch, a Trump appointee and one of the Court’s most conservative members, joined by Jackson, a Biden appointee — the Court’s newest and, perhaps, its most left-wing member. Gorsuch took pains to observe that he “do[es] not discount the States’ concerns” about the mayhem lifting Title 42 would entail. Philosophically, one suspects that he and Jackson would be in very different places if the question were what border-security policy the United States should have. They are both correct, however, in agreeing that the Court has no business making that policy, even if the president and Congress are derelict in their duty to do so.