Asking Courts to Decide

Terry H. Schwadron

Dec. 29. 2022

The Supreme Court bowed this week to the wishes of 19 Republican-led states and kept Title 42, the covid-derived tool for quick deportation, in place temporarily. But has that solved anything?

From all reports, gathering migrants hoping for a loosened law at the border are building out huge tent cities on the Mexican side of the Rio Grande, the authorities are still seeing a thousand or more unauthorized crossings a day — 9,000 on a couple of days — and humanitarian groups are overwhelmed with feeding and sheltering too many at once. Texas authorities are still dumping migrants in Washington without notice as a protest.

At the same time, Congress is readying for a new session in which the Republican majority promise hearings about Hunter Biden’s laptop and Democrats seem to want to ignore the border problems.

Of course, had the Title 42 rule been lifted, thousands of migrants were prepared to enter the country to open asylum requests in a system that cannot handle even the current numbers. In human terms, it could be worse on this side of the border but remains bad on the Mexican side.

Everything about this case and the larger issues are upside down.

The rule was part of Donald Trump’s hardening of the border, using the covid restrictions as an excuse for immediate expulsions. When the Centers for Disease Control said that agency could no longer justify covid deportations — an earlier court ruling found the CDC “arbitrary and capricious” in enforcing Title 42, the same Republicans who rant against covid restrictions and public health measures went nuts and said we had to have covid rules for immigrants if not for our own citizens.

The Joe Biden administration, which generally wants a new view towards immigration altogether, was now in the position of dealing with expiration of the rules at the same time that covid numbers are once again rising.

Republican attorneys general who brought the case were exultant about a victory for more stringent and stronger borders, though practically speaking, that seems hot air when you look at what’s still happening. Though Democrats and the White House were silent, there may have been private relief that there would be no immediately worsened situation that would prove politically embarrassing as well as difficult to handle.

The Opinions

The 5–4 majority order was brief with no explanation. It essentially preserves the status quo at the border until hearings in February or March. No decision is likely before June.

The order said that while the administration cannot set aside the Title 42 policy, the decision “does not prevent the federal government from taking any action with respect to that policy.”

What was most interesting about the court decision was the set of blinders that justices adopted for themselves in the dissents.

A dissent by Neil M. Gorsuch, a conservative, and Ketanji Brown Jackson, a liberal, underscored that they were there only to resolve the narrow question of whether states can challenge a specific administrative policy, not to look at the effects of their ruling on what happens at the border.

The Gorsuch dissent made clear that the court’s decision and the case seemed more directed at indirectly settling border issues than legal issues, and that covid was a blind altogether. “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 a policymaker of last resort,” he wrote.

Our Expectations

But that’s what our age has brought about. Aggrieved, if divided parties are dragging their insolvable political problems to the courts to resolve.

The court has invited that attitude through the recent decisions overturning abortion rights and attacking the power of the federal government to favor states.

That’s how we end up with 60 or more challenges of election procedures to substitute a judicial ruling for perceived, more favorable vote results. It’s how we end up with seemingly weekly filings from Republican states over social policies from a Democratic administration in Washington. In Arizona, loser candidate for governor Kari Lake first brought her loss to court, then wants an appeal of her unsuccessful petition based seemingly on nothing more than she wants a different outcome.

In other words, yes, we have made our courts exactly what Gorsuch attacks in his dissent, a forum to shop for better partisan outcome than we can expect from those whom we send to Washington to pass legislation.

Comprehensive legislative proposals on immigration have been kicking around Congress for a decade with no apparent possibility of movement. It is ridiculous. We are actively avoiding solutions for problems that involve humanitarian values as well as security issues, smuggling protections, our economic needs for immigrants as well as any recognition of what have long been American values. The legal immigration options are so complicated that they defy explanation; in the less-than-legal arenas, the numbers of people addressed to the issue are dwarfed by the steady increase in those seeking a better life in America.

The Title 42 case should never have been a case at all. Kicking the can down the road again solves nothing. A prevalent thought in our courts and in our legislatures that this is a problem for someone else to solve is a sign of our times.




Journalist, musician, community volunteer

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