On Tuesday, the Supreme Court voted to keep Title 42—a Trump-era policy that expels asylum seekers—in effect, overriding a district judge’s November decision that would have ended the policy last week. The Supreme Court will now entertain arguments in February, with a decision expected months from now, in June.
The 5-4 decision went in favor of the 19 Republican state attorneys general who had filed an emergency request in response to a ruling from U.S. district judge Emmet Sullivan, who ruled that Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” Sullivan’s ruling described how the Center for Disease Control hadn’t evolved the policy alongside the changing state of the pandemic, failing to make adjustments as wider availability of vaccines, testing, and treatments became the norm.
The majority’s decision flicked at the court’s conservative bloc’s tendency to play Calvinball with the law; having previously allowed the Trump administration the leeway to act as it willed in illegally rejecting asylum seekers, it thwarted the attempts of the executive branch to remediate those policies once it became “the Biden administration.”
But the decision didn’t entirely break along partisan lines. Justice Neil Gorsuch joined Justices Sonia Sotomayor, Elena Kagan, and Kentanji Brown Jackson in dissenting. Gorsuch wrote that “the current border crisis is not a COVID crisis,” and accordingly, “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.”
Gorsuch’s thoughts in a losing opinion can only provide so much comfort. After all, just as the 19 Republican attorneys general sought to use Covid as a justification for draconian asylum restrictions, the Supreme Court played a similar round of Covid Calvinball last year when deciding to reject administrative action for workplace safety. Arguing that the Occupational Safety and Health Administration’s Covid testing mandate for workers overstepped the boundaries of the agency’s authority by issuing a “public health” edict instead of a “workplace safety” rule, the Supreme Court ruled 6-3 to block the mandate.
In that instance, the court’s six conservative justices argued that Covid presented a “universal risk” and not just a specifically occupational hazard; the dissenters rightly pointed out that “[the OSHA statute] is indifferent to whether a hazard in the workplace is also found elsewhere.… That provision authorizes regulation to protect employees from all hazards present in the workplace.… It does not matter whether those hazards also exist beyond the workplace walls.”
With the conservative-led Supreme Court’s incoherence on overseeing Covid-inspired policy, it’s no surprise that Republican members of congress—particularly those who have been on the front lines of Covid denialism—have cited the pandemic as a justification to skip votes (and sometimes end up instead happily attending CPAC).
The United States continues to disregard its own laws and principles on accepting asylum seekers. Halfway through the Biden administration, the Trump-era policy tweak has been allowed to continue while Biden has sought to quietly neutralize the border as an issue. In response to the Court’s decision, the administration says it is still preparing to manage the border while the Court reviews Title 42, and challenges Republicans “to move past political finger-pointing and join their Democratic colleagues in solving the challenge at our border.” But such bland messaging might not be up to snuff in confronting a Supreme Court that seems to want to make up the rules of the game as it goes along.