The Supreme Court just made a baffling announcement about an equally baffling immigration case, in which the Court appears to have manipulated its own scheduling and procedures to leave a Trump-era border policy in place for as long as possible.
While the announcement is benign at first glance — the Court simply said it would not hear Arizona v. Mayorkas after all, most likely because the case turns on a regulation related to the government’s pandemic-related national emergency, which is set to end in May anyway — the practical effect is much greater. The result of this announcement is that a Trump-appointed judge, who handed down a dubiously reasoned decision last May that effectively seized control of the Biden administration’s power to set an important border policy, will most likely continue to dictate federal policy for another three months.
The Arizona case arises out of a Trump-era border policy, known as “Title 42,” which uses an expedited process to expel numerous immigrants arriving at the Mexican or Canadian borders. This policy has been widely criticized for causing human rights abuses. An April 2021 report “documented at least 492 attacks or kidnappings of asylum seekers expelled under the policy since Biden took office” a few months before the report’s release. And this was likely a gross underestimation of the number of these incidents.
The legal basis for this program is a federal statute permitting the federal government to ban foreign nationals from entering the country to prevent the spread of a “communicable disease.” The Trump administration initially justified the program as a way to fight Covid-19.
Although the Biden administration left this Title 42 policy in place for many months, it eventually announced that the program must be terminated in May of 2022. But before the policy could sunset, a group of Republican state officials ran to a Trump-appointed judge — who swiftly ordered the Biden administration to leave Title 42 in place. The Trump judge’s decision (his name is Robert Summerhays) is obviously wrong. And yet it’s been in effect for most of a year now, effectively transferring the executive branch’s power to set border policy to a single judge.
The Arizona case is stupidly complicated. For starters, it doesn’t even involve a direct appeal of Summerhays’s decision. The Arizona case arises out of an entirely separate lawsuit in which Emmet Sullivan, a Clinton-appointed judge, ruled that the Title 42 program is unlawful and must be terminated regardless of whether the Biden administration also wants to halt it.
But, before Sullivan’s order could terminate the program, the Supreme Court stepped in last December with its own 5-4 decision. That decision blocked Judge Sullivan’s order — effectively forcing the Biden administration to comply with Summerhays’s decision to keep Title 42 in effect — while the justices pondered a minor procedural question about whether a group of states that support Title 42 waited too long to file a particular document.
Then, on Thursday, the Court made its most recent announcement in this case. It reads simply that “The case is REMOVED from the February 2023 argument calendar.” So it appears that the Court will not decide this paperwork question at all. Notably, however, the Court did not lift its order blocking Sullivan’s decision, which means that Title 42 must remain in effect.
It is likely that the Court decided to remove this case from its calendar because the Justice Department informed the Court in its Arizona brief that it plans to terminate the Covid-19 public health emergency on May 11. This termination, DOJ argued, “would render this case moot” because it will cause the Title 42 program to “expire by its own terms.”
As a practical matter, by removing this case from its calendar, but leaving its order blocking Judge Sullivan’s decision in place, the Supreme Court has likely ensured that Summerhays will dictate border policy until at least May 11, when the Covid-19 public health emergency ends — although, to be clear, the Court could end Summerhays’s reign as America’s de facto border czar at any point by lifting its stay of Sullivan’s decision.
That means that, absent further action by the Supreme Court, a Trump judge will have dictated federal border policy for nearly an entire year, despite the fact that Summerhays’ decision is poorly reasoned and rests on a rather glaring legal error.
The Title 42 program, briefly explained
The Title 42 program has that name because it arises out of a federal law that appears in Title 42 of the United States Code. That law permits the Centers for Disease Control and Prevention to “prohibit, in whole or in part, the introduction of persons and property from such countries or places as [it] shall designate in order to avert” the spread of a “communicable disease” that is present in a foreign country.
Beginning in 2020, when the Covid pandemic was raging and no vaccines were yet available, the Trump administration used this authority to order large numbers of non-citizens arriving at the Canadian and Mexican borders to be immediately expelled from the United States.
The program has been controversial from the beginning, and has led to truly revolting human rights abuses. As a federal appeals court explained in a 2022 opinion about Title 42, at least some non-citizens expelled by the program were sent “to places where they will be persecuted or tortured.” The Court added that “the record is replete with stomach-churning evidence of death, torture, and rape.”
That decision ultimately concluded that “for now” the program could continue, but that foreign nationals swept up in the program may only be expelled “to places where they will not be persecuted or tortured.”
Nevertheless, the Biden administration chose to leave the policy in place for more than a year after Biden took office, as large numbers of migrants arrived at the United States’ southern border hoping to enter this country.
But, as the country left the acute phase of the Covid pandemic, and as vaccines drastically diminished the public health threat caused by this pandemic, Title 42 became increasingly hard to justify legally. Thus, on April 1 of last year, the CDC concluded that “the cross-border spread of Covid-19 due to covered noncitizens does not present the serious danger to public health that it once did, given the range of mitigation measures now available” — a position that even Gorsuch would later agree with. As part of this announcement, the CDC said that it would terminate the Title 42 policy as of May 23, 2022.
But then Robert Summerhays got involved.
Summerhays’s decision forcing Title 42 to remain in effect is obviously wrong
Judge Summerhays’s decision in Louisiana v. CDC, the case where he ordered the Biden administration to reinstate Title 42, isn’t just wrong. It makes no sense. That decision is currently on appeal to the right-wing United States Court of Appeals for the Fifth Circuit, which is expected to hear arguments in this case in March.
The thrust of Summerhays’s Louisiana decision is that the CDC was required to undergo a lengthy process known as “notice and comment” — a process that allows the public to weigh in on policy changes but typically takes months or even years to complete — before it could terminate the Title 42 program. But the whole point of the public health statute permitting the CDC to close the border to certain foreign nationals is to allow the government to swiftly issue emergency orders to mitigate a potential public health crisis.
If the CDC had to spend months jumping through procedural hoops before it could invoke its powers under this statute, then the statute may as well not exist. Suppose that a new disease emerged in, say, Finland next month, and the CDC determined that it should close the border to Finish nationals to delay this disease’s arrival in the United States. It would be pointless to issue such an order months from now. The whole point of such an emergency public health order is that it needs to take effect right away, before the disease enters the United States.
And the Supreme Court has said explicitly that, when the government decides to terminate a policy, it need only use the same process it was required to use in order to create that policy. As the Court said in Perez v. Mortgage Bankers Association (2015), “agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.”
The Trump administration did not use notice and comment to create the Title 42 policy. (It did use the process for a later immigration regulation governing the scope of CDC’s power to close the border to foreign nationals, but not for Title 42 itself.) The CDC has since issued several other orders, also without notice and comment, that modified or extended the duration of the Title 42 program.
So Summerhays had no basis whatsoever to extend the Title 42 program on his own authority. The program should have terminated last May, when the Biden administration exercised its lawful authority to end it.
The other lawsuit involving Title 42, briefly explained
Again, the Louisiana lawsuit is not currently before the Supreme Court. It matters to the Arizona case, however, because Summerhays’s poorly reasoned decision is the specific thing that prevents the Biden administration from ending Title 42. Summerhays has effectively claimed for himself a power that federal law gives only to the CDC.
But there is also another lawsuit, known as Huisha-Huisha v. Mayorkas, which asks whether the Title 42 program is itself illegal — and therefore it doesn’t matter whether the Biden administration checked all the right procedural boxes when it decided to terminate it.
In Huisha-Huisha, Judge Emmet Sullivan, a Clinton appointee, ruled that the Title 42 program is illegal in large part due to a 2017 regulation that requires the CDC to use the “least restrictive means necessary to prevent the spread of disease.” As Sullivan wrote, the CDC could have used less restrictive methods, such as “masking or testing” to ensure that foreign nationals with Covid did not enter the United States and spread the disease within our borders.
Sullivan’s order was supposed to take effect on December 21, which would have meant that Title 42 would finally sunset seven months after it was supposed to end in May 2022. But then the Supreme Court had to get involved. And that brings us to the Arizona case.
In December, the Supreme Court issued a 5-4 decision suspending Sullivan’s order, so that the justices could weigh a procedural question that is far afield from any of the important questions at the heart of this case.
After Sullivan handed down his decision, the states behind the Louisiana lawsuit asked to “intervene” in the case so that they could ask a higher court to suspend Sullivan’s order — intervention is a process that allows a non-party to a suit to act as if it were a party, and thus challenge a lower court’s decisions on appeal. But a bipartisan panel of the DC Circuit rejected these states’ request to intervene, on the ground that the states waited far too long to do so.
In any event, in case there are any civil procedure nerds out there who were dying to know whether the Supreme Court would permit these states to intervene, those nerds will have to live in ignorance. The Court’s decision to pull the Arizona case from its calendar means that this procedural question will likely remain unresolved.
But, notably, the Court did not lift its order suspending Sullivan’s decision. It could choose to at any time, but unless and until it does, the Biden administration must comply with Summerhays’s unlawful order continuing the Title 42 program.
The Supreme Court’s behavior in the Arizona case is part of a much broader pattern
If the Supreme Court’s decision to effectively extend the Title 42 program for even more months after it lawfully should have ended were an isolated incident, then it would be easier to accept that this decision was motivated by something other than politics. It is much harder to do so, however, because the Arizona case is part of a much broader pattern in which the Court appears to be manipulating its procedures and its scheduling in ways that extend the life of Republican policies, while swiftly quashing Democratic plans.
In August of 2021, for example, an increasingly notorious Trump judge named Matthew Kacsmaryk ordered the Biden administration to reinstate a Trump-era border policy known as “Remain in Mexico,” which required many asylum seekers to stay on the Mexican side of the US southern border while they awaited a hearing. The Supreme Court eventually reversed Kacsmaryk, but it sat on the case for 10 months before doing so.
Similarly, last July, a Trump judge named Drew Tipton effectively seized control of much of the Biden administration’s over Immigration and Customs Enforcement (ICE), the agency that enforces immigration law within US borders. Tipton’s opinion is poorly reasoned and at odds with more than a century of Supreme Court precedents, and a majority of the justices appeared likely to reverse Tipton during oral arguments on the case in November.
But the Court has also sat on this case for months, rejecting the Justice Department’s request to immediately restore the administration’s lawful authority over ICE in July. The Court may not rule on the case, known as United States v. Texas, until June — at which point Tipton will have unlawfully imposed his will on ICE for 11 months.
The Court’s Republican majority did not behave like this when a Republican was in the White House. In Barr v. East Bay Sanctuary (2019), a lower court blocked a Trump administration policy that locked virtually all Central American migrants out of the asylum process. The Trump administration asked the justices to reinstate this policy in late August 2019, and the Court agreed to do so about two weeks later. Similarly, in Wolf v. Cook County (2020), the Court reinstated a Trump administration policy targeting low-income immigrants — and it did so just eight days after Trump’s lawyers asked the Court to do so.
So the Court, which is dominated by Republican appointees, moved with extraordinary alacrity when a Republican president’s policy was in trouble. But when a Democratic administration exercised its lawful authority to abandon GOP policies, the Court slow-walked those cases — leaving dubiously reasoned lower court orders issued by Trump judges in place for months or longer.
The story of the Title 42 cases, then, is all the biggest problems with the federal judiciary in a nutshell. It reveals just how easily the courts can shape national policy by playing around with something as seemingly innocuous as scheduling.