Supreme Court Creates Immigration Policy: Arizona v. Mayorkas, Dept. Homeland Security

CJ Roberts Leads Right Wing Justices to "Legislate" Immigration Policy

Five Justices of the Supreme Court, not content with their lifetime role serving as Article III Justices, have now taken an extremely thin reed to promote themselves as both the Congress and the Executive branches in deciding immigration and public health policy. Encouraged by recent Supreme Court actions to jump into cases long before they have completed the appellate process, a number of Republican Attorneys General, lead by Arizona, have belatedly sought to intervene in litigation challenging the continuation of Trump’s Title 42 program of prompt expulsion of asylum seekers and other migrants ostensibly as a public health measure to prevent spread of Covid-19. The Supreme Court, not content with their role as Justices, have now sided with those Republican Attorneys General, by staying the Biden Administration’s termination of the Trump Title 42 expulsion program.

Some background. In April, 2022, the CDC announced that the Title 42 program of expulsion at the border in order to prevent the spread of Covid-19 was no longer required as a public health matter as the availability of testing, vaccinations and treatment for Covid were now wide-spread. But litigation was filed seeking to continue Tittle 42, and at the same time other plaintiffs filed litigation to allow the new CDC policy to be put into effect by terminating the Title 42 program of expulsion at the border. The plaintiffs in that case won a summary judgment decision agreeing that any continuation of the Title 42 program was unwarranted in light of the CDC judgment that Title 42 was no longer necessary to preserve public health. An appeal was filed to the D.C. Circuit Court of Appeals, and eight months after that litigation was commenced, the Republican Attorneys General decided to seek intervention on appeal in order to maintain Title 42. The D.C. Circuit denied the Republican Attorneys General motion to intervene as untimely as they waited eight months to seek intervention after the litigation was filed and after the district court judgment. The Republican Attorneys General then filed an Application for a Stay of the district court judgment and also sought certiorari of the D.C. Circuit order denying them intervention on appeal.

Chief Justice Roberts, acting as Circuit Justice, now seeing another opportunity for the Supreme Court to expand its power, granted an administrative stay and referred the case to the Supreme Court for consideration. Now the power play comes into effect as the Supreme Court granted certiorari on the limited issue of whether the States could intervene on appeal after they waited eight months after the litigation was filed. But the question of intervention on appeal is a procedural matter, but the five Justices took that thin reed and raced all the way to the end of the merits issue and granted a Stay of the termination of Title 42 even though the States had not yet been granted intervention and were not yet actually parties in the litigation. So, the States, who were not yet parties to the litigation, as they had not been granted intervention, got the Supreme Court to grant them a stay on the merits providing for continuation of the Title 42 Trump expulsion program.

This is bootstrapping on bootstrapping or the shadow docket of the shadow docket. So, the Supreme Court was giving relief on the merits by a Stay Order to States who were not yet even parties to the litigation. Justices Gorsuch and Jackson dissented that the Court was intruding into Executive policy areas.

The issue again was the Biden Administration trying to terminate a Trump Title 42 public health program as no longer necessary, and the Supreme Court steps in and preserves the Trump program in the face of the Biden Administration’s efforts to end it as not any longer necessary as a public health program. But the radical right wing, activist Republican Justices did not want to allow the Biden Administration to exercise its lawful powers as the Executive branch and in so doing it once again empowered the Republican Attorneys General to impose their will on national policy by preventing Biden from terminating what Trump began.

In a recent speech Chief Justice Roberts said there were not Republican and Democratic Justices, but his actions in leading the five member majority to empower Republican Attorneys General to overrule the Biden Administration efforts to terminate a no longer necessary Trump program, shows that his actions speak much louder than his words.

Now of course Congress should be stepping into this breach in this reversal of roles and the power grab by the Supreme Court in deciding immigration policy, but Congress has sat on its hands and done nothing to reform our immigration laws. Trump was largely responsible for taking immigration reform off the legislative table by his nationalistic, America First rhetoric which scared the spineless Republicans from cooperating in any immigration reform efforts.

But now with Trump enveloped in multiple investigations and becoming ever more frightened of potential life behind bars, Republicans may feel more free to take on immigration reform legislation, a task that is vitally needed.

Now getting back to the Supreme Court case. The Republican effort was lead by the Arizona Attorney General, but the Maricopa County Court has just declared, after a required recount, that Democrat Kris Mayes has won election as the new Arizona Attorney General. So, let’s hope she undermines the Arizona v. Mayorkas case by changing sides and supporting termination of the Title 42 immediate expulsion program. Her motion to vacate the Court’s stay would present an interesting challenge to the Supreme Court Justices in realizing they perhaps are overstepping their lawful jurisdiction and boundaries far too much. The Court’s recent practice of frequently granting for Republicans certiorari before completion of appellate litigation and worse yet granting merits relief without full briefing and argument is making a mockery of the Court’s procedures and rules as they expand their power and intrude on the role of both the Congress and the Executive.