Yesterday, the Supreme Court canceled the previously scheduled oral arguments Arizona v. Mayorkas, a case titled 42 “Public Health” Deportation of Immigrants at the Southern Border. The court did not give reasons for the reversal, or indicate whether the arguments would be rescheduled. But presumably, the justices canceled oral arguments because they felt the case would soon become moot, thanks to the Biden administration’s plan to end the Covid-19 national emergency by May 11. If so, the court’s reasoning could widen the path to Title 42 evictions ending in the near future.
Title 42 was fired by Donald Trump in March 2020 for the ostensible purpose of preventing the spread of Covid in the United States and later continued by Biden. The current version of the Centers for Disease Control’s order authorizing deportations says they will end whenever the Covid emergency is lifted.
The issue before the court only involves a motion to intervene in a lawsuit filed by a group of red states who claim the Biden administration is not defending Title 42 aggressively enough. The justices do not plan to consider the underlying issue of whether a Title 42 eviction is legal. But if the issue of interference is substantive, the same is true of the case as a whole.
If this is indeed the court’s view, I would expect them to soon lift the district court’s stay of injunctions, ending Title 42 deportations. That would require the Biden administration to end the policy before May 11.
Although the moratorium was not lifted before May, it concluded, Arizona v. Mayorkas is moot also implies that the same is true of a separate case in which a Texas district court ruled that it was illegal for the administration to rescind the policy without going through the notice and comment process required by the Administrative Procedure Act.
I have discussed the status of the two Title 42 cases and the interaction between them in more detail here and here. As explained in previous posts, if the Supreme Court lifts the stay on the ban against Title 42 deportations, it will likely take precedence over blocking the administration’s efforts to end the policy.
It is theoretically possible that the Supreme Court simply plans to reschedule oral arguments for a later date. It is also possible that two Title 42 cases will not materialize as summarized in my last post on the subject:
The cases will not be settled until May 11. It would be unusual for the Supreme Court and the Fifth Circuit (which is ruling against efforts to end deportations) to complete all their deliberations so quickly. But they probably can. Courts may also find technical reasons for concluding that one or both of these cases remain in live controversy…
Additionally, the administration could decide to extend the Covid emergency again… For a long time, Biden has been playing a kind of double game with Title 42 exclusions, simultaneously claiming to want to end them, yet continuing to defend them in court and even expand their use. kept Like Trump before him, Biden’s use of Title 42 deportations has been guided more by political considerations than scientific ones. It is possible that this will be reversed if the administration sees some benefit in doing so.
Despite these caveats, I think the most likely scenario is that the lawsuits will indeed become incomplete, and the Title 42 deportations will likely end on May 11, or perhaps even before then. Yesterday’s announcement makes this more likely than ever.
In my view, Title 42 deportations were unlawful from the outset, once it became clear that Covid-19 was established in the United States. Trump and Biden deserve the harshest condemnation for continuing this illegal and extraordinarily harmful policy for so long where it was clear that it had no real public health benefit.
I would prefer for the courts to rule the policy invalid. But dismissing cases involving policy may be preferable to continuing the case for many more months, during which the expulsion may continue.
We will probably soon have a more definitive solution to the obesity question. But canceling oral arguments is a strong indication that the Supreme Court is moving toward embracing the Biden administration’s position that these cases are set to be argued by May 11.