By Philip Klein
Wednesday, December 28, 2022
Justice Neil Gorsuch has taken heat from some
conservatives for joining with the liberal minority of the Supreme Court to
reject a request by states to maintain Title 42 border measures indefinitely,
which the Court’s majority granted.
It’s undeniable that, given President Biden’s lack of
seriousness about securing the border, removing Title 42 would exacerbate the
border crisis. But, as Gorsuch articulates quite clearly, this is a decision for
policy-makers, not the courts.
Title 42 orders were issued by the Centers for Disease
Control and Prevention on an emergency basis to restrict immigration citing the
threat that immigrants could introduce a communicable disease. But, as Gorsuch
writes, “the emergency on which those orders were premised has long since
lapsed.”
Gorsuch acknowledges that the border crisis would get
worse were Title 42 to expire, but explains that correcting policy failures is
not the job of the Supreme Court:
The States contend that they face
an immigration crisis at the border and policymakers have failed to agree on
adequate measures to address it. The only means left to mitigate the crisis,
the States suggest, is an order from this Court directing the federal
government to continue its COVID-era Title 42 policies as long as possible—at
the very least during the pendency of our review. Today, the Court supplies
just such an order. For my part, I do not discount the States’ concerns. Even
the federal government acknowledges “that the end of the Title 42 orders will
likely have disruptive consequences.” Brief in Opposition for Federal
Respondents 6. But 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 policymakers of last resort.
Those who argue that the Supreme Court should serve as a
policy-making arm of the Right are adopting the same philosophy that they
decried when liberals were doing it.
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