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Justice Gorsuch slams COVID restrictions as “the greatest intrusions on civil liberties in the peace

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Elderberry:
Legal Insurrection by  James Nault 5/21/2023

Justice Gorsuch slams COVID restrictions as “the greatest intrusions on civil liberties in the peacetime history of this country”

In an unusual Statement appended to a procedural Order, he wrote: “Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces.”

On Thursday, the United States Supreme Court issued a brief Order in “the Title 42 Cases” vacating an Order of the U.S. Court of Appeals for the District of Columbia Circuit, which will be explained in more detail below.  But what is interesting is a very unusual “Statement” authored by Justice Neil Gorsuch, alone, appended to that Order.

Procedural Context

“The Title 42 Cases” involve different federal courts issuing completely opposite orders each having nationwide effect and effectively causing legal mayhem in the immigration/COVID context.

The Title 42 Orders

When the COVID pandemic began in March 2020, executive branch officials issued “Title 42” orders severely restricting immigration to prevent the spread of COVID from immigrants to the U.S. population.  This continued until April 2022, when the CDC issued a Notice in the Federal Register indicating that the immigration restrictions were no longer necessary to prevent the spread of COVID, and setting May 23, 2022 as the official date COVID-related immigration restrictions would terminate.

Federal Court Case #1

In the federal court in the Western District of Louisiana, three states, Arizona, Louisiana, and Missouri, sued the CDC and requested the court issue an injunction preventing the CDC from terminating the COVID-related immigration restrictions.  Justice Gorsuch explains why:

    [The] States argued that the government’s decision to end the Title 42 orders violated the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq., because agency officials had not provided advance notice of their decision or invited public comment.  The States did not seriously dispute that the public-health justification for the orders had lapsed.  The States also understood that their lawsuit would only require the government to take certain additional procedural steps before ending the Title 42 orders.  But the States apparently calculated that even a short, court-ordered extension of those decrees was worth the fight.  Worth it because, in their judgment, a new and different crisis had emerged at the border and the federal government had done too little to address it.  Keeping the Title 42 orders in place even temporarily was better than the alternative.

The Court agreed with the States and entered a “nationwide injunction that effectively required the government to enforce the Title 42 orders until and unless it complied with the [APA’s] notice-and-comment procedures.”  That Injunction Order is available here.  So the lifting of the severe restrictions on immigration that the States had feared was delayed, as they had hoped.

Federal Court Case #2

But not so fast!

    Meanwhile, a thousand miles away, a group of asylum seekers filed a competing class-action lawsuit in a federal district court in Washington, D. C.  This group argued that, from the start, the government lacked legal authority to issue its Title 42 orders.  Ultimately, the D. C. district court agreed with the group’s assessment and issued an equally sweeping form of relief—sometimes called ‘universal vacatur’—that purported to wipe the Title 42 orders off the books as if they never existed.  So it is that the federal government found itself in an unenviable spot—bound by two inconsistent nationwide commands, one requiring it to enforce the Title 42 orders and another practically forbidding it from doing so.

As I said, after the D.C. federal court’s Order, available here, mayhem ensued.

To make matters even worse, two of the States who had sued in federal court in Louisiana and won, Arizona and Louisiana, joined by several other states, including Texas, moved to intervene in the D.C. case, suspecting that the Government, who lost the ability to enforce the Title 42 Orders there, would not press an appeal very hard because the CDC had already made it clear it didn’t want to enforce the Title 42 Orders anyway.  But, the U.S. Court of Appeals for the District of Columbia denied the States’ Motion to Intervene.

More: https://legalinsurrection.com/2023/05/justice-gorsuch-slams-covid-restrictions-as-the-greatest-intrusions-on-civil-liberties-in-the-peacetime-history-of-this-country/

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