The Supreme Court is playing partisan games with its “shadow docket” in Arizona v. Mayorkas

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On Tuesday, the Supreme Court handed down a one-page, 5-4 decision extending the life of a Trump-era border policy known as Title 42, which expels numerous immigrants seeking to enter the United States using an expedited process.

That decision came in Arizona v. Mayorkas, and is typical behavior from the Supreme Court — or, at least, is reflective of this Court’s behavior since a Democrat moved into the White House at the beginning of 2021. It’s the latest example of the Court dragging its feet after a GOP-appointed lower court judge overrides the Biden administration’s policy judgments, often letting that one judge decide the nation’s policy for nearly an entire year.

The Title 42 program, which the Biden administration determined must be terminated last May, will now likely remain in effect for several more months due to the Court’s decision. Indeed, even if the Court ultimately decides that the administration should prevail in this case, the Court is unlikely to lift its order extending this Trump-era program until June. And that delay may be the best-case scenario for the Biden administration — and for the general principle that unelected judges aren’t supposed to decide the nation’s border policy.

Moreover, the current situation differs sharply when Republican President Donald Trump was in office, and the Court frequently raced to reinstate Trump’s policies within mere days.

A brief history of the Supreme Court’s politicized scheduling

In August 2021, a Trump-appointed judge named Matthew Kacsmaryk handed down a poorly reasoned opinion ordering the Biden administration to reinstate a program, known as “Remain in Mexico,” that required many asylum seekers to stay on the Mexican side of the US southern border while they awaited a hearing. Although the Supreme Court eventually reversed Kacsmaryk, it sat on the case for more than 10 months — effectively letting Kacsmaryk exercise the homeland security secretary’s authority over the border during that entire period.

Worse, when the Court did eventually decide this case, known as Biden v. Texas, it left one looming issue in the lawsuit unresolved and sent the case back to Kacsmaryk. The Supreme Court determined that Kacsmaryk misread federal immigration law to only give the federal government two alternatives when an asylum seeker arrives at the Mexican border, when in fact the government has many options. It left open the question of whether the Biden administration properly completed the appropriate paperwork when it terminated Remain in Mexico.

When the case returned to Kacsmaryk, a former Christian right activist with a record of granting legally dubious victories to conservative litigants, he handed down a second order indicating that the administration must reinstate the Remain in Mexico program. It could be a year or more before the Supreme Court gets around to reviewing Kacsmaryk’s new attempt to impose Trump’s immigration policies on the country.

Similarly, last July, a Trump judge named Drew Tipton effectively seized control of much of Homeland Security Secretary Alejandro Mayorkas’s authority over Immigration and Customs Enforcement (ICE), the agency that enforces immigration law within US borders. Tipton’s opinion is exceedingly weak and cannot be squared with more than a century of Supreme Court precedents, and a majority of the justices appeared likely to reverse Tipton during oral arguments on the case in November.

But the Court has also sat on this case for months, rejecting the Justice Department’s request to immediately restore Secretary Mayorkas’s lawful authority over ICE in July. The Supreme Court may not rule on the case, known as United States v. Texas, until next June — at which point Tipton will have unlawfully usurped Mayorkas’s authority for 11 months.

The Court’s tendency to manipulate its own calendar isn’t restricted to immigration cases. One of the most high-profile examples of the Court delaying resolution of a case brought by left-leaning litigants occurred in September 2021, before the Court’s 2022 decision overruling Roe v. Wade. A 5-4 Court refused to decide a case challenging Texas’s strict anti-abortion law known as SB 8, effectively allowing Texas to ban many abortions while Roe remained good law. (In fairness, the Court did eventually rule on SB 8 the next December, but that decision established that SB 8 is immune from any meaningful constitutional challenge.)

The Court, which currently has a Republican supermajority, did not behave this way when a Republican occupied the White House. In Barr v. East Bay Sanctuary (2019), for example, a lower court blocked a Trump administration policy that effectively locked virtually all Central American migrants out of the asylum process. The Trump administration asked the justices to reinstate this policy in late August 2019, and the Court agreed to do so about two weeks later.

Similarly, in Wolf v. Cook County (2020), the Court reinstated a Trump administration policy targeting low-income immigrants — and it did so just eight days after Trump’s lawyers asked the Court to do so.

Indeed, under Trump, the Court was so quick to intervene when a lower court blocked one of the Republican administration’s policies that Justice Sonia Sotomayor complained in dissent that her GOP-appointed colleagues were “putting a thumb on the scale in favor of” the Trump administration.

As these cases show, the Supreme Court can wield tremendous power not just by handing down substantive rulings that determine what federal law requires. It can often reshape federal policy for months or even longer by manipulating how quickly it attends to the cases on its docket.

Although the Court has historically discouraged litigants of all kinds from seeking relief on its so-called “shadow docket,” cases that are decided using an expedited process and without full briefing or oral argument, these longstanding norms faded away when Trump was president. When lower courts blocked Trump policies, the Court frequently raced to reinstate those polices.

Yet when lower courts blocked Biden’s policies, the Supreme Court sat on its hands — sometimes in cases where a majority of the justices believed that the lower court had mangled the law.

Judicial partisanship, in other words, is often much more subtle than a Supreme Court opinion definitively ruling that the law must be read to implement Republican policies. Sometimes, locking GOP policies in place, at least temporarily, can be accomplished with little more than creative scheduling.

The winding road that brought Title 42 to the Supreme Court

Setting aside the question of when the Court will determine if the Title 42 program should continue to exist, it should be noted that the Court’s decision in Arizona is difficult to defend on the merits. As Justice Neil Gorsuch, a Trump appointee who normally behaves like a doctrinaire conservative, writes in his Arizona dissent, the Title 42 program was justified by a public health emergency — the acute phase of the Covid-19 pandemic — which has “long since lapsed.”

Federal law permits the Centers for Disease Control and Prevention to “prohibit, in whole or in part, the introduction of persons and property from such countries or places as [it] shall designate in order to avert” the spread of a “communicable disease” that is present in a foreign country. Beginning in late 2020, when the Covid pandemic was raging, the Trump administration used this authority to order large numbers of noncitizens arriving at the Canadian and Mexican borders to be immediately expelled from the United States.

The program is called “Title 42” because the statute permitting it to exist is part of Title 42 of the United States Code.

The Biden administration, for its part, decided to leave this policy in place for more than a year after President Biden took office — Title 42 is both a useful tool for officials seeking to limit immigration at the southern border and an increasingly difficult-to-justify tool because its only legal basis is a statute permitting temporary immigration restrictions to prevent the spread of disease.

Eventually, the Biden administration determined that the program could no longer be called necessary. On April 1, the CDC concluded that “the cross-border spread of COVID-19 due to covered noncitizens does not present the serious danger to public health that it once did, given the range of mitigation measures now available.” Accordingly, the CDC announced that it would terminate the Title 42 policy as of May 23, 2022.

But that order never took effect. Shortly after CDC announced that the Title 42 program would end, a group of Republican state officials filed a lawsuit claiming that the program must continue in order to maintain what they described as “the abrupt elimination of the only safety valve preventing this Administration’s disastrous border policies from devolving into an unmitigated chaos and catastrophe.” The case was assigned to Judge Robert Summerhays, a Trump appointee to a federal court in Louisiana, and Summerhays issued an order requiring the administration to continue the policy three days before Title 42 was supposed to end.

This case is known as Louisiana v. CDC.

Summerhays’s decision is wrong. In it, he claims that the Biden administration was required to undergo a lengthy process known as “notice and comment,” which can take months or years to complete, before it could terminate the Title 42 program. But the whole point of the public health statute at issue in this case is that sometimes the government has to issue emergency immigration orders to mitigate a public health crisis.

If the government had to complete a months-long process every time it issues an order under this statute, then the statute serves no purpose. If a new disease were to emerge in, say, Switzerland tomorrow, it would be pointless for the government to close the border to Swiss people months from now. Such an emergency order must be issued as fast as possible.

Nor should a different process apply when the CDC decides to lift an emergency order. As the Supreme 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.”

In any event, Summerhays’s decision is not currently before the Supreme Court — it’s currently on appeal to the United States Court of Appeals for the Fifth Circuit. But the decision matters because his order is the specific thing that prevents the Biden administration from terminating the Title 42 program immediately.

The Arizona case — the one that is actually before the Supreme Court — involves a parallel lawsuit heard by Clinton-appointed Judge Emmet Sullivan, in a case called Huisha-Huisha v. Mayorkas. That decision determined that the Title 42 program is itself unlawful and must be terminated.

Frankly, there is nearly as much to criticize in Sullivan’s opinion as there is to criticize in Summerhays’s. Both decisions depart from the ordinary rule that public health policy should be set by officials who are accountable to an elected president, and not by unelected judges. They also depart from the text of the relevant public health statute, which provides that public health officials — and not judges like Robert Summerhays or Emmet Sullivan — should determine when emergency immigration restrictions should be implemented to control the spread of a communicable disease.

But Sullivan’s order would also have the practical effect of implementing the same policy that the Biden administration sought to put in place last May. While Summerhays attacked the CDC’s order terminating the Title 42 program, Sullivan concluded that the Title 42 program is itself illegal and must be terminated on his authority.

Except that the Supreme Court decided to halt Sullivan’s order, at least for now.

The Supreme Court’s Title 42 decision makes no sense

If you are confused by this convoluted tale of two competing lawsuits, I should warn you that things are about to get even more complicated.

The Biden administration did not seek a prolonged stay of Sullivan’s order, which means that this order should be in effect right now and the Title 42 program should be terminated. But the states behind the Louisiana lawsuit (the one heard by Summerhays), did ask a federal appeals court to stay Sullivan’s order — even though those states are not a party to the Huisha-Huisha lawsuit.

While it is sometimes possible for a non-party to a lawsuit to “intervene” in a case, and gain the power to act as if they were a party to the suit in the process, a bipartisan appeals court panel determined that the red states waited too long to intervene in the Huisha-Huisha case. That order — not the merits of Sullivan’s decision, but the appeals court order determining that the states waited too long — is what’s before the Supreme Court in the Arizona case.

The Court’s 5-4 decision in Arizona, meanwhile, effectively ruled that the Title 42 program must remain in effect while the justices consider whether the red states failed to intervene in the Huisha-Huisha case in a timely manner.

So, to summarize, one judge, a Republican, has determined that the Republican Party’s preferred immigration policy must remain in effect. His opinion is poorly reasoned and at odds both with a federal statute and with binding Supreme Court precedents. Meanwhile, a second judge, a Democratic appointee, has determined that the Republican Party’s preferred immigration policy is illegal.

The CDC — the only institution that actually has the statutory authority to determine when the Title 42 program should be terminated — decided that this program must end in May. But CDC’s April order has been trapped in limbo for months due to the Republican judge’s erroneous decision. And it is now likely to be trapped in limbo for much longer while the Supreme Court ponders a minor procedural question about when parties seeking to intervene in a lawsuit must do so.

All of this is happening, moreover, against the backdrop of a Supreme Court that took only days to determine that a Republican administration’s policies must be put into effect right away, but that often sits on cases blocking Democratic policies for months — even when the justices ultimately determine that the lower court’s order blocking the Democratic policy was wrong.

In 2021, Trump-appointed Justice Amy Coney Barrett delivered a speech at the University of Louisville’s McConnell Center (named for Senate Republican leader Mitch McConnell), in which she announced that her goal was “to convince you that this court is not comprised of a bunch of partisan hacks.” But if that is truly her goal, she and her colleagues might want to consider applying the same scheduling rules to cases brought by Republicans that her Court applies to cases brought by Democrats.

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