The States Want to Stage an Intervention for Biden’s Troubled Borders, and the Supreme Court Seems Eager to Oblige
Beyond Title 42 is the question whether the feds can collude in lawsuits to avoid the rulemaking process
By George Fishman on December 28, 2022
In a belated Christmas gift to national sovereignty, and as my colleague Andrew Arthur describes, “On December 27, the Supreme Court issued an opinion in Arizona v. Mayorkas, staying the end of Title 42 in response to an application for a stay filed by a coalition of states who are seeking to keep those CDC [Centers for Disease Control and Prevention] orders, which direct the expulsion of illegal migrants in response to the Covid-19 pandemic, in place.” The Court directed its “Clerk ... to establish a briefing schedule that will allow the case to be argued in the February 2023 argument session. The stay shall terminate upon the sending down of the judgment of this Court.” Thus, Title 42 (at least in its anemic Biden form) should remain in effect at least until the summer.
The Court was clear that it was granting the states’ petition for a writ of certiorari only as to the procedural question of “Whether the States ... may intervene to challenge the district court’s summary judgment order [mandating the termination of DHS’s current use of Title 42].” The Court will not be reviewing “the underlying merits” (or, more precisely, the underlying meritlessness) of the district court’s termination order, its review “limited to the question of intervention.”
Interestingly, the Court stated that “the stay itself does not prevent the federal government from taking any action with respect to th[e Title 42] policy.” What the Court didn’t mention was that in May a federal district court in Louisiana issued a preliminary injunction preventing the federal government from doing just this — finding that the Biden administration had violated the Administrative Procedure Act (APA) by issuing an order terminating CDC’s Title 42 orders without first going through the required notice and comment process. As Arthur notes:
https://cis.org/Fishman/States-Want-Stage-Intervention-Bidens-Troubled-Borders-and-Supreme-Court-Seems-Eager-Oblige
