Pablo De La Rosa is a freelance journalist, reporting statewide for Texas Public Radio and nationally for NPR.

Can the states intervene? The SCOTUS Title 42 decision will impact much more than just immigration

The Supreme Court building in Washington DC. | Used with permission.

What a SCOTUS Title 42 ruling might mean

As has been widely reported, migrants seeking asylum at the border will continue to be expeditiously removed at least until The Supreme Court provides a judgement on the Title 42 case in June.

Steve Vladeck, law professor at the University of Texas, just published an analysis of the legal situation on his recently launched SCOTUS Substack, “One First”, that journalists and legal nerds will really appreciate.

Vladeck goes into the distant past and the recent history of the health code. There’s also a good explanation of how the multiple cases between advocacies, states, and the federal government here interconnect.

The best part is on what’s legally at stake in the coming Title 42 judgement, as it pertains to the involvement of the states.

From the Vladeck article:

Indeed, allowing states to defend a prior administration’s policies seems like a rather dangerous way of inverting the relative roles and responsibilities of state and federal governments—and an easy way to allow appellate courts to prevent the incumbent President from getting rid of his predecessor’s policies—even where lower courts have held them to be unlawful.

There’s also the high (and problematic) likelihood that such a new approach to state intervention would not end up being symmetrical in its application—since Republican-appointed judges and Justices may, in general, be more sympathetic to red-state challenges to efforts by Democratic Presidents to rescind their Republican predecessors’ policies than vice-versa.

And last, there’s the matter of allowing states to effectively intervene in the federal executive branch’s discretion to adopt or rescind policies—which, of course, dovetails with Texas’s attempt to have a district judge control the federal government’s immigration enforcement priorities in United States v. Texas (in which the Court heard argument earlier this month). Among other things, this could lead to the ability of a sitting President to entrench his or her policies in a way that would be unduly difficult for their successors to unwind, so long as there’s at least one state willing to defend them (which, in the current political climate, there surely will be).

Simply put, the actual intervention question in the “Title 42” case has enormous potential ramifications that go well beyond this particular, controversial policy. And so whatever one thinks about “Title 42” as either a policy or legal matter, this dispute is actually a much bigger deal than even this one massively significant policy.

Read the whole article on Vladeck’s Substack here: “Title 42” Comes to the Court

The politics already in play

Ian Millhiser on Vox’s SCOTUS beat wrote another good explanation about the court politics already in play and how Title 42 fits in to what’s been going on there.

From the Millhiser article:

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.

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.

Read the whole article on Vox here: The Supreme Court is manipulating its own calendar to lock GOP policies in place


Pablo De La Rosa reports on immigration, border communities, preserving democracy, and Latin America for Texas Public Radio and NPR from the Texas-Mexico border, where he grew up. He’s the host of the daily Spanish newscast TPR Noticias Al Día and a regular contributor at The Border Chronicle.

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