This evening, the Supreme Court issued an order in the Title 42 case that stayed the nationwide vacatur issue by Emmet G. Sullivan. The 5-4 decision by Chief Justice Roberts prompted a dissent from Justice Neil Gorsuch who once again showed his independence in voting with his liberal colleagues. Indeed, the order was a classic example of the institutionalist (Roberts) and the purest (Gorsuch) going head to head. The case will now be heard in oral argument in February 2023 and, in the interim, the “Remain in Mexico” policy will remain in place. The order embodies what Gorsuch previously warned was a “holiday” of legal principles during the Covid crisis.
Title 42 allowed the federal government to deny entry to certain aliens to prevent the spread of a contagion (COVID-19). Judge Sullivan issued a nationwide injunction in an earlier decision. The D.C. Circuit upheld the order.
The Court ordered that
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.
It is not clear what the Court meant by “does not prevent the federal government from taking any action with respect to that policy.”
Justices Sotomayor and Kagan voted to deny the stay. Justice Gorsuch wrote a two-page dissent, joined by Justice Jackson.
The Gorsuch dissent was a classic. Gorsuch has long followed principle over convenience or compromise. As I discussed in my testimony at his confirmation hearing, “Gorsuch continued to apply cases with which he disagreed as an appellate judge, particularly cases following the Chevron doctrine.”
Gorsuch has long refused to blindly follow Covid rationales as an exception to constitutional or statutory limitations. In his concurrence in Roman Catholic Diocese in November 2020, Gorsuch wrote:
Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.
In his dissent (joined by Justice Jackson) on Title 42, Justice Gorsuch clearly believes that the holiday has continued:
The States may question whether the government followed the right administrative steps before issuing this decision (an issue on which I express no view). But they 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. . . .
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.
The two positions between Roberts and Gorsuch captures a more fundamental difference than any disagreement over Title 42. Roberts is the ultimate incrementalist and institutionalist. He tends to resist the Court ordering radical changes as evident in his sole concurrence in Dobbs where he wanted to preserve Roe but uphold the Mississippi law. In that respect, kicking this issue to February is perfectly predictable. “Remain in Mexico” will remain as the Court (and possibly the Administration) works things out.
Ironically, the Biden Administration may secretly relish this result. It allow the President to satisfy immigration advocates and his base by fighting to lift the limitation. Yet, it prevents a further loss of control over entries along the Southern border.
Gorsuch’s dissent is equally predictable. As I noted in my confirmation testimony:
“Judge Gorsuch is a refreshing departure from that trend. He has a record of well-considered writings both as a judge and as an author. This is no blind date. …He is a thoughtful conservative jurist who is guided by first principles of constitutional and interpretive analysis. That is not to say that he is predictable on future votes … He appears driven by his view of core, structuring principles—much like the jurist he will replace. That may take him in directions that are unexpected to the left or to the right. However, if his prior writings are any guide, it will be a direction that he believes is dictated by legal principle and not personal predilection.”
Gorsuch recognizes that the Biden Administration’s opposition to Title 42 may fuel the flood of illegal immigration across the Southern border. However, he is bound by oath to apply the law, not tailor the law to fit political or policy demands.
That does not mean that Roberts is wrong in scheduling a full argument. The Court is merely allowing a full argument on the question and freezing the status quo until that time. However, no order more captures the fundamental divide between these two conservative jurists.