Supreme Court orders “halt” to Title 42 to “ease” the border crisis… Here is what they actually held.

Justice Gorsuch joins the liberals and makes solid Constitutional sense in doing so.

The United States Supreme Court entered an Order this afternoon regarding Title 42 which is being reported as an Order “putting on hold” the Biden administration’s termination of the COVID-era emergency policy under which Border officials have deported 2.5 million migrants on the ground that they posed a “serious danger” of “introducing” a “communicable disease.” My reading of the Court’s Order and, most importantly, the dissenting opinion of Justice Gorsuch, leads me to believe that this reporting is not quite accurate (I know– who expects the MSM to be accurate?) as both the Court and the Dissenting Opinion make it crystal clear that a stay has been granted on a very narrow ground and the Court went out of its way to make that as clear as the English language can express it. 

I would be most interested in the views of others as to what this actually means and fear that the misreporting is going to cause a great deal of confusion as to what the Court has actually done today. 

Here are the pertinent portions of the Order:

***The parties are directed to brief and argue the following question: Whether
the State applicants may intervene to challenge the District
Court’s summary judgment order.

This stay precludes giving effect to the District Court order setting aside and vacating the Title 42 policy; the stay
itself does not prevent the federal government from taking
any action with respect to that policy. The Court’s review
on certiorari is limited to the question of intervention.
While the underlying merits of the District Court’s summary judgment order are pertinent to that analysis, the
Court does not grant review of those merits, which have not
yet been addressed by the Court of Appeals.

What may come as a surprise to many who (try to…) follow the Supreme Court and, as they say, “read the tea leaves” for signs of the alignment of the Members of the Court along ideological lines, is the fact that the dissenters were the three Justices who would be expected to oppose the action of the Court today– with the Dissenting Opinion being written by Justice Gorsuch, who continues to refuse to fit into any previously determined category. What came as a surprise to me, for what it’s worth, is that I am in 100% agreement with the dissenters on this particular issue, and urge all to read Justice Gorsuch’s dissent to make your own decision as to whether it is entirely grounded in common sense and, hard as it is to believe for the other dissenters, core, traditional conservative values. Both opinions may be found here, for those who would like to study them. 

The dissent sets out the background as follows:

From March 2020 to April 2022, the Centers for Disease
Control and Prevention responded to the COVID–19 pandemic by issuing a series of emergency decrees. Those decrees—often called “Title 42 orders”—severely restricted
immigration to this country on the ground that it posed a
“serious danger” of “introduc[ing]” a “communicable disease.” 58 Stat. 704, 42 U. S. C. §265. Fast forward to a few
weeks ago. A district court held that the Title 42 orders
were arbitrary and capricious, vacated them, and enjoined
their operation. On appeal, Arizona and certain other
States moved to intervene to challenge the district court’s
ruling, arguing that the federal government would not defend the Title 42 orders as vigorously as they might. The
D. C. Circuit denied the States’ motion. In response, the
States have now come to this Court seeking two things.
First, the States ask us to grant expedited review of the
D. C. Circuit’s intervention ruling. Second, the States ask
us to stay the district court’s judgment while we review the
D. C. Circuit’s intervention ruling. This stay would effectively require the federal government to continue enforcing
the Title 42 orders indefinitely. Today, the Court obliges
both requests. Respectfully, I believe these decisions unwise.

While I recommend reading the entire (very brief) dissenting opinion, Justice Gorsuch’s basic reasoning in set out in these passages:

*** the emergency on which those orders were premised has long since lapsed.

***

***But {the States] do not seriously dispute
that the public-health justification undergirding the Title
42 orders has lapsed. And it is hardly obvious why we
should rush in to review a ruling on a motion to intervene
in a case concerning emergency decrees that have outlived
their shelf life.

The only plausible reason for stepping in at this stage
that I can discern has to do with the States’ second request.
The States contend that they face an immigration crisis at
the border and policymakers have failed to agree on adequate measures to address it. The only means left to mitigate the crisis, the States suggest, is an order from this
Court directing the federal government to continue its
COVID-era Title 42 policies as long as possible—at the very
least during the pendency of our review. Today, the Court
supplies just such an order. For my part, I do not discount
the States’ concerns. Even the federal government
acknowledges “that the end of the Title 42 orders will likely
have disruptive consequences.” Brief in Opposition for Federal Respondents 6. But 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 use a phrase Justice Gorsuch used in the course of his opinion, while “reasonable minds can disagree” about whether “policymakers”, i.e., the criminally feckless and incompetent Biden administration, should be doing more about the crisis at the border, the last line of the dissent struck me as one of the clearest expressions of foundational Constitutional reasoning seen in quite some time, with the obvious exception of practically anything from the pen of the one who will go down in history as one of the great Constitutionalists in the history of the Court, Hon. Clarence Thomas. 

I would welcome your views as “reasonable minds” may indeed differ and I look forward to hearing whether you agree or disagree with my interpretation of this ruling.

Happy New Year!

God Bless America!