Blame Trump, A Trump-Appointed Judge, and SCOTUS For Title 42's Perpetuation, But Also Blame the Biden Administration (New Content!)

 by Michael C. Dorf

Yesterday the Supreme Court--by a 5-4 shadow docket ruling--extended the stay previously granted by the Chief Justice of a DC Circuit decision that denied Arizona and other states intervention to defend the Title 42 protocols that deny asylum seekers entry into the U.S. via the usual process to which they're entitled. If you had on your Bingo card the Democratic appointees plus Justice Gorsuch dissenting (in a published dissent joined by Justice Jackson), congratulations. That was the lineup in Arizona v. Majorkas.

The case as it reaches SCOTUS does not involve the merits. The Court stayed the DC Circuit judgment so that it could resolve only the intervention question following expedited briefing and plenary argument in February. As a practical matter, that means that the Title 42 protocols will remain in effect for now, even though yesterday's per curiam order states that it "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."

What other action with respect to the policy could the Biden administration take? Well, in principle it could take new administrative action to abandon the Title 42 protocols, but the first time it tried to do that, it was enjoined to keep Title 42 in place by a different federal district court judge (a Trump appointee), who thought the rescission was procedurally flawed. It is conceivable that between now and when SCOTUS rules on the intervention issue some time this spring or summer, the administration could rescind the Title 42 procedures in a way that doesn't get enjoined, but that seems highly unlikely.

On the surface, therefore, it might look like a policy adopted by Trump has been perpetuated by a Trump-appointed judge and a Trump-backed SCOTUS. And that's mostly true. But not entirely. For one thing, as noted, Justice Gorsuch--one of the three Trump appointees to SCOTUS--dissented. More fundamentally, had the Biden administration acted with greater alacrity, it could have long ago rescinded the policy in a manner that would have withstood legal challenge.

Title 42 is shorthand for a code provision that allows the government to exclude persons who might introduce a communicable disease into the United States, notwithstanding other provisions of law--such as those governing asylum seekers--that would render them eligible for at least temporary entry. Even when the Trump administration adopted the policy, the invocation of the COVID-19 pandemic as a basis for restricting applicants who would otherwise be eligible for admission under the usual Title 8 screening procedures was a little dubious: COVID was already widely circulating in the U.S., so admitting such persons would not result in the "introduction" into the U.S. of a new disease, as the statute appears to require. (For a very forceful argument to this effect, see pp 662-69 of this article by Prof Ilya Somin; for a shorter version with some points that parallel what I say here, see Prof Somin's post this morning on the Volokh Conspiracy.)

Still, at the time the Trump administration adopted the Title 42 policy, other countries were also enforcing strict travel restrictions; conditions among migrants could lead to a higher risk of spread; and foreign travelers could introduce new variants. Thus, the policy was at least initially within shouting distance of the statute.

Not so anymore--as evidenced by the states' own filings. They say (as they must to obtain the sort of emergency relief that SCOTUS just granted them) that they will suffer irreparable harm from the lifting of the Title 42 restrictions, but not because of the spread of COVID-19. After all, the putative intervenors are red states in no small part thanks to the votes of the Republican Party base, which includes substantial numbers of people who don't even think COVID exists, or think it is transmitted by lizard-people in human skin suits, or some other batshit crazy thing that they read on Twitter or Truth Social. Rather, the states say that lifting the Title 42 restrictions will cause harm because it will result in a large and unruly influx of migrants.

And maybe it will. But as Justice Gorsuch concludes his dissent yesterday, that has nothing to do with the public health basis for the Title 42 restrictions.

Does that mean that there's nothing to the states' case for standing? Not necessarily. It is possible to suffer an injury that gives rise to standing that enables one to challenge a policy on procedural grounds, even if the injury has nothing to do with any supposed substantive flaw in the underlying policy--indeed, even if the underlying policy is perfectly legal as a substantive matter.

But if the states' position is cynically opportunistic, so is the position of the Biden administration. It appealed from the May ruling requiring it to keep the Title 42 procedures in place but did not seek any sort of expedited relief. Meanwhile, although it opposed what it justifiably saw as officious intermeddling by the state plaintiffs in Arizona v. Majorkas, its primary argument was that their presence wasn't needed; the Justice Department itself was in fact providing a defense of the Title 42 procedures.

An observer could not be deemed overly harsh in thinking the Biden administration is trying to have it both ways: it purports to want to end the Trump Title 42 policy, but it has slow-rolled the litigation and has not, to my knowledge, initiated a notice-and-comment rulemaking to change the policy. It could have and should done so months ago. If it had, by now it would have successfully rescinded the Trump policy--and if the courts had unjustifiably stopped such a rescission, well then the blame would have been entirely on the courts' shoulders.