The Supreme Court on Thursday passed up a chance to weigh in on the Biden administration’s decision to declare an end to the coronavirus public health emergency and allow strict pandemic-related limits on asylum-seekers to expire.
A coalition of conservative states sought to enter long-running litigation over the policy known as Title 42, after the Biden administration was ordered to end the immigration restrictions last year and agreed to a wind-down period to do so.
Last December, the justices voted 5-4 to temporarily block a lower court judge’s order requiring an end to the immigration restrictions. The Supreme Court also added the dispute to its docket to be argued earlier this year.
However, after the Biden administration announced plans to unilaterally terminate the public health emergency earlier this month, the justices removed the case from their argument calendar. Last week, the administration formally ended the emergency and the related immigration controls.
On Thursday, the justices effectively declared the legal dispute moot and wiped out an order from the D.C. Circuit Court of Appeals denying the red states’ effort to wade into the long-running legal case brought by lawyers representing asylum-seekers.
Despite their move deep-sixing the Title 42 fight, the justices could soon be confronted by legal issues arising from the Biden administration’s attempt to replace the pandemic-related rules with other policies designed to discourage asylum-seekers from simply showing up at border stations or crossing without being checked by immigration officers.
Acting at the request of the state of Florida, a federal judge in Pensacola has blocked two of the administration’s plans to release some immigrants after processing at the border. The Justice Department has appealed both those decisions and has said it plans to seek emergency relief, raising the possibility the matter could be in front of the Supreme Court within days.
Justice Ketanji Brown Jackson, an appointee of President Joe Biden, dissented from the court’s action Thursday. She said would have simply had the Supreme Court drop the matter without directing the appeals court to do anything.
Justice Neil Gorsuch endorsed the high court’s action but authored an eight-page opinion arguing that it was a mistake to use the pandemic-related measure to control a long-standing problem with irregular immigration on the southern border.
“The Court took a serious misstep when it effectively allowed nonparties to this case to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one,” Gorsuch wrote. “Today’s dismissal goes some way to correcting that error.”
Gorsuch, an appointee of former President Donald Trump, also used the opportunity to lament what he described as overreach by government officials who seized on the pandemic to wield power they would otherwise have never tried to assert.
“Courts bound to protect our liberties addressed a few — but hardly all — of the intrusions upon them,” Gorsuch wrote. “In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation. … Rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”
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