Justice Neil Gorsuch‘s dissent from the Supreme Court’s majority order allowing 19 states to carry on with their bid defending the Title 42 immigration policy meshes with the Biden administration’s push for “immigration reform” legislation.
Title 42, which was implemented in March 2020 to quickly deny entry to certain illegal immigrants to prevent the spread of COVID-19, will remain in place after a 5-4 decision by the Supreme Court’s conservative majority, which said the court would hear arguments in February to determine whether GOP-led states have basis to intervene in the policy’s termination.
SUPREME COURT KEEPS TITLE 42 IMMIGRATION POLICY IN PLACE FOR NOW
But Gorsuch was the lone Republican appointee who joined the liberal bloc in voting to keep U.S. District Judge Emmet Sullivan’s November order in place, which would have lifted Title 42 by Dec. 21. Justice Ketanji Brown Jackson, a President Joe Biden appointee, joined his dissent, while Justices Elena Kagan and Sonia Sotomayor voted in congruence with the vocal dissenters.
Josh Blackman, a professor at South Texas Law School, told the Washington Examiner that the justice’s dissent was “classic Gorsuch,” noting, “he’s long been skeptical of using COVID as a justification to modify the law.”
Gorsuch was not unsympathetic to the states’ plight in the wake of thousands of immigrants crossing the U.S.-Mexico border each day, saying, “For my part, I do not discount the states’ concerns,” according to court records.
“Even the federal government acknowledges ‘that the end of the Title 42 orders will likely have disruptive consequences,'” Gorsuch wrote. He ended his two-page dissent by maintaining, “We are a court of law, not policymakers of last resort.”
White House press secretary Karine Jean-Pierre picked up the conversation where the Trump-appointed justice left off via her response to the high court’s order, saying, “Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.”
“To truly fix our broken immigration system, we need Congress to pass comprehensive immigration reform measures,” Jean-Pierre added.
Blackman said Gorsuch’s dissent makes the point that Title 42 “should not justify a perpetual, permanent exception to the immigration laws.”
“And if Congress wants to change it, that’s up to Congress. It’s not up to the executive branch to do it solo,” Blackman said of the justice’s response.
The extent that Gorsuch’s dissent is “classic” was also echoed by George Washington University Law School professor Jonathan Turley, who wrote in his blog that the justice has “long refused to blindly follow COVID rationales as an exception to constitutional or statutory limitations,” citing his concurrence in the 2020 case Roman Catholic Diocese of Brooklyn v. Andrew Cuomo.
“Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Gorsuch wrote on Nov. 25, 2020.
Turley also said the majority’s decision showcased the “pragmatist” nature of Chief Justice John Roberts up against the “purest” nature of Gorsuch.
For now, Title 42 and another Trump-era policy known as “Remain in Mexico” or Migrant Protection Protocols, which sends certain non-Mexican citizens who entered the U.S. back to Mexico, will serve as the administration’s strong arm to deter the flood of immigrants massing on the border, despite the more than 73,000 “gotaways” that evaded Border Patrol agents in November alone.
And the response from the Supreme Court and the White House has already prompted outside groups to encourage so-called “immigration reform,” including a press release by the League of United Latin American Citizens, which promotes liberal immigration policies.
“Both parties must work together to stop illegal crossings by passing a bipartisan immigration bill that allows legal migration. Elected officials must secure the border by closing immigration law loopholes,” LULAC president Domingo Garcia wrote in a statement.
“This situation is not solely a presidential problem,” Garcia added.
Arizona Attorney General Mark Brnovich, who spearheaded the 19 states attempting to maintain Title 42, conceded in a Fox News interview Wednesday that “Title 42 wasn’t meant to be a permanent solution.”
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But Brnovich maintains the crisis at the U.S.-Mexico border “should not be up to the states to do.”
“It’s the federal government’s responsibility, the White House … and they’re failing on both counts, and the American people are paying the price every day, not only physically, but in lives lost,” Brnovich said.
