A new Supreme Court decision leaves a Trump judge in charge of the Mexican border

“Although the Biden administration left this Title 42 policy in place for many months, it eventually announced that the program must be terminated in May of 2022. But before the policy could sunset, a group of Republican state officials ran to a Trump-appointed judge — who swiftly ordered the Biden administration to leave Title 42 in place. The Trump judge’s decision (his name is Robert Summerhays) is obviously wrong. And yet it’s been in effect for most of a year now, effectively transferring the executive branch’s power to set border policy to a single judge.”

“As a practical matter, by removing this case from its calendar, but leaving its order blocking Judge Sullivan’s decision in place, the Supreme Court has likely ensured that Summerhays will dictate border policy until at least May 11, when the Covid-19 public health emergency ends — although, to be clear, the Court could end Summerhays’s reign as America’s de facto border czar at any point by lifting its stay of Sullivan’s decision.

That means that, absent further action by the Supreme Court, a Trump judge will have dictated federal border policy for nearly an entire year, despite the fact that Summerhays’ decision is poorly reasoned and rests on a rather glaring legal error.”

“The thrust of Summerhays’s Louisiana decision is that the CDC was required to undergo a lengthy process known as “notice and comment” — a process that allows the public to weigh in on policy changes buttypically takes months or even years to complete — before it could terminate the Title 42 program. But the whole point of the public health statute permitting the CDC to close the border to certain foreign nationals is to allow the government to swiftly issue emergency orders to mitigate a potential public health crisis.

If the CDC had to spend months jumping through procedural hoops before it could invoke its powers under this statute, then the statute may as well not exist. Suppose that a new disease emerged in, say, Finland next month, and the CDC determined that it should close the border to Finish nationals to delay this disease’s arrival in the United States. It would be pointless to issue such an order months from now. The whole point of such an emergency public health order is that it needs to take effect right away, before the disease enters the United States.

And the Supreme Court has said explicitly that, when the government decides to terminate a policy, it need only use the same process it was required to use in order to create that policy. As the Court said in Perez v. Mortgage Bankers Association (2015), “agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.”

The Trump administration did not use notice and comment to create the Title 42 policy. (It did use the process for a later immigration regulation governing the scope of CDC’s power to close the border to foreign nationals, but not for Title 42 itself.) The CDC has since issued several other orders, also without notice and comment, that modified or extended the duration of the Title 42 program.

So Summerhays had no basis whatsoever to extend the Title 42 program on his own authority. The program should have terminated last May, when the Biden administration exercised its lawful authority to end it.”

“If the Supreme Court’s decision to effectively extend the Title 42 program for even more months after it lawfully should have ended were an isolated incident, then it would be easier to accept that this decision was motivated by something other than politics. It is much harder to do so, however, because the Arizona case is part of a much broader pattern in which the Court appears to be manipulating its procedures and its scheduling in ways that extend the life of Republican policies, while swiftly quashing Democratic plans.”

https://www.vox.com/2023/2/16/23592576/supreme-court-title-42-immigration-border-pandemic

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