7. “Title 42” Comes to the Court

An emergency application pending before the Court raises the intersection of immigration, COVID, and newfound state efforts to control federal policymaking

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it with your networks—and perhaps even signing up for a paid subscription.

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On the Docket

As last Monday’s newsletter predicted, the only real news at the Court last week was the emergency application filed by 19 (red) states asking the Justices to prevent the so-called “Title 42” immigration program from expiring, as it was set to do on Wednesday. Chief Justice Roberts issued an “administrative” stay on Monday, temporarily keeping the program from ending while the full Court decides what to do with the states’ application. That ruling is expected sometime this week—and that application (and the broader litigation from which it arises) is the subject of this week’s “Long Read,” below.

An emergency application was also filed asking the Court to put back into effect a district court injunction of certain New York gun control regulations, after the Second Circuit had stayed that injunction (putting the New York restrictions back into effect) pending appeal. Given that the application was filed on Wednesday and Justice Sotomayor still hasn’t even called for a response, this one may not have quite the same urgency as the Title 42 case. (Justice Sotomayor also granted an administrative stay of a Second Circuit ruling that had required a state prisoner who had prevailed in her federal habeas petition to return to custody, but this case is less likely to have broader effects.)

Finally, in addition to rulings on some/all of these applications, the only news we expect out of the Court this week is the annual dropping of the Chief Justice’s “Year-End Report on the State of the Federal Judiciary,” which goes online, like clockwork, at 6 p.m. (EST) on Saturday (i.e., halftime of the Michigan-TCU game—GO BLUE!!). I’ll probably devote next week’s issue to that page-turner, just in case you don’t have a chance to read it first.

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The One First Long Read: “Title 42” Comes to the Court

When I launched “One First” six weeks ago, my plan had been to mix in coverage of current events at the Court with deeper historical dives. Thanks to the paucity of formal opinions of the Court so far this Term (the next one will be the first), things have skewed a bit toward the latter. With that in mind, this week’s edition aspires to more of the former—to look much more closely at the pending emergency application in the “Title 42” case, which interweaves a number of fascinating themes and recent controversies in some of the nerdier procedural aspects of civil litigation challenging federal policymaking.

Let’s start at the top. “Title 42” is an incredibly vague shorthand for a very specific immigration policy that was begun by the Trump administration early in the COVID pandemic. The term is a reference, believe it or not, to nothing more specific than the massive and wide-ranging Title 42 of the U.S. Code, one small section (section 265) of which gives the government (today, the CDC) “the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert [the] danger [posed by the spread of a communicable disease], and for such period of time as he may deem necessary for such purpose.”

Here’s the full text of the provision, enacted as part of the Public Health Service Act of 1944 (and never amended since):

In other words, the “Title 42” policy is a broadsword, allowing immigration officers to deny entry at the border in the midst of a pandemic to those suspected of potentially carrying communicable diseases, even if they are seeking asylum or other humanitarian relief for which they are legally eligible to apply, if not to receive.

Critics of the government’s reliance on “Title 42” have argued that it’s little more than a pretext—a way to justify especially harsh asylum policies that are not in any way actually aimed at protecting public health, and to thereby close the door to asylum for many who might otherwise be eligible to seek it. (Consider, in this regard, the Venn diagram between politicians loudly arguing to continue the “Title 42” program and those who have argued that any public health justifications for domestic pandemic restrictions have long-since evaporated.)

In a nutshell, although “Title 42” is supposed to be a public health-specific program, it has become popular in some circles entirely because it takes the relevant decisionmakers off the hook for more nuanced policies to address immigration at the southern border, under the putative rubric of protecting against the spread of COVID. Whatever one thinks of the origins and responsibility for the current border situation, it clearly has increasingly little to do with the COVID pandemic, so that the reliance upon “Title 42” as some kind of general solution seems increasingly difficult to justify. (Multiple Justices have already expressed skepticism about executive officials using the COVID pandemic as pretextual cover for regulatory actions they couldn’t otherwise take.)

Indeed, the policy also appears to have had the counterintuitive effect of increasing attempted border crossings (and perhaps exacerbating the current situation), since those who are immediately expelled under “Title 42” have no reason not to try entering a second time, versus those who present themselves for asylum and await the outcome of their proceedings. (The American Immigration Council has a helpful summary of the policy’s dramatic effects both in this respect and others.)

In August 2021, the Biden administration issued its own rule under section 265 that, in material respects, mirrored the Trump-era guidance—and continued the program, at least temporarily. Then, on April 1, 2022, the administration shifted gears, rescinding the policy as of May 23, 2022 in light of “the readily available and less burdensome public health mitigation tools to combat the disease.” Matters might have ended there, but for two overlapping (albeit distinct) lawsuits.

The first lawsuit is the reason why the policy did not end on May 23. In it, 24 (red) state AGs, led (alphabetically) by Arizona, sued in the Western District of Louisiana, claiming that the Biden administration hadn’t dotted the i’s and crossed the t’s in rescinding its August 2021 directive. The district court in Arizona v. CDC agreed, issuing a nationwide preliminary injunction against the April 2022 rescission of Title 42, holding that the Biden administration had likely violated the Administrative Procedure Act by failing to engage in notice-and-comment rulemaking. Both the CDC and private intervenors have appealed that ruling to the Fifth Circuit, where the briefing is complete, but the appeal has not yet been scheduled for argument.

The second lawsuit (the one that has now reached the Supreme Court) comes from the other direction—a challenge to the lawfulness of the Title 42 policy itself. Filed in the D.C. federal district court and captioned Huisha-Huisha v. Mayorkas, the suit sought class-wide relief against the policy on the ground that it was arbitrary and capricious under the APA.

After a series of rulings (including one by the D.C. Circuit), on November 15, D.C. district judge Emmet Sullivan sided with the plaintiffs and issued a permanent injunction against the Title 42 policy in a 49-page opinion. Sullivan also agreed, however, with “great reluctance,” to stay his decision for five weeks to give the federal government time to unwind the policy. That stay (and, with it, Title 42) was set to expire on Wednesday, December 21.

[One quick note before getting to the current SCOTUS action: The Huisha-Huisha and Arizona rulings don’t formally conflict. The Arizona ruling blocked the Biden administration’s April 2022 rescission of Title 42, but the Huisha-Huisha ruling blocked the policy itself, so that the termination of the policy would be court-ordered, not regulatory. That’s why the policy was set to expire last Wednesday notwithstanding the district court’s nationwide injunction in Arizona v. CDC; even if the Biden administration was blocked from formally “rescinding” the policy, Judge Sullivan’s injunction prevents it from carrying out the policy.]

Judge Emmet Sullivan, whose 49-page September 2022 ruling permanently enjoined the “Title 42” policy

On December 9, the Biden administration appealed Judge Sullivan’s ruling to the D.C. Circuit, but it did not seek a stay of that ruling pending appeal (and apparently was willing to hold that appeal in abeyance pending the Fifth Circuit’s decision in the Arizona v. CDC case). It’s at this point that Arizona and 18 of the other 23 states that were parties to the Louisiana case took matters into their own hands. On December 12, they filed an extraordinary pair of motions in the D.C. Circuit, seeking (1) leave to intervene in the federal government’s appeal; and (2) an emergency stay of Judge Sullivan’s ruling to prevent it from going into effect on December 21.

On Friday, December 16, an ideologically diverse panel of the D.C. Circuit (Pillard, Walker, & Pan, JJ.) denied both motions, with no public dissent. As the panel explained in a brief order, the states had acted in a thoroughly untimely manner in seeking intervention, waiting until after Judge Sullivan’s entry of final judgment (over two years into the litigation) to seek to participate. The short unsigned opinion detailed how it had been clear for some time (since at least October 2021) that the states’ interests and the federal government’s were likely to diverge, and that it had been clear for over eight months that they had diverged. And because the court of appeals denied the states’ motion to intervene, it dismissed the motion for an emergency stay as “moot” (since the states, as non-parties, were not entitled to seek such relief).

Thus, the emergency application that these 19 states filed with the Supreme Court last Monday is in a very strange posture. Although it indirectly attacks Judge Sullivan’s permanent injunction of Title 42, it’s directly attacking the D.C. Circuit’s refusal to allow the states to intervene in the federal government’s appeal—seeking an emergency stay of Judge Sullivan’s injunction while the intervention issue is hashed out (including, potentially, through a grant of certiorari solely on the intervention issue).

In other words, it’s an emergency application by non-parties, asking the Court to stay a district court ruling to which they were not parties because (they claim) there’s a decent chance they’ll win on whether they should have been allowed to intervene in the D.C. Circuit—and then win the appeal of Judge Sullivan’s ruling to the D.C. Circuit on the merits.

In that respect, the “Title 42” application raises an intervention question similar to one on which the Court had granted certiorari last Term, only to “DIG” the case, i.e., dismiss certiorari as improvidently granted—without a ruling on the merits. In Arizona v. City and County of San Francisco, a number of red states likewise sought to intervene in a lawsuit challenging the Trump-era “public charge rule” for the purpose of defending the rule after the Biden administration declined to do so.

Writing for himself and Justices Thomas, Alito, and Gorsuch, Chief Justice Roberts concurred in the Court’s decision to the “DIG” the case, but wrote to note the importance of the questions the case raised about when the federal government could use court-ordered decrees blocking a prior administration’s policy as justification for rescinding the policy without notice-and-comment rulemaking—and when states could intervene to defend that prior policy if the current administration sought to do so.

It’s worth stepping back for a moment to reflect on this point. Whether the federal government should be allowed to decline to appeal adverse court rulings throwing out policies it doesn’t like (or, at the very least, to use those rulings to justify short-circuiting the APA) is one question; whether states should be allowed to intervene in court for purposes of defending those policies if the federal government won’t seems another matter altogether. 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.

But whatever the broader merits of the intervention question, it’s also worth stressing that it’s arising here (in what’s now captioned “Arizona v. Mayorkas”) in the specific context of an emergency application—where the burden for relief is supposed to be meaningfully higher than if the issue were fully before the Court on plenary review.

And in this case, specifically, it’s arising in a context in which three court of appeals judges from across the ideological spectrum took the view that the states’ proposed intervention was extremely untimely—a procedural obstacle to reaching even the substance of the intervention issue, let alone the procedural or substantive validity of “Title 42” itself. In that respect, the states’ application presents something very similar to the “mare’s nest” that led Chief Justice Roberts to concur in the Court’s DIG last Term in Arizona v. City and County of San Francisco—which, again, arose in a context in which the Court was conducting plenary review, not considering an emergency application.

Ultimately, it’s foolish to try to predict how the Court is likely to rule. The only thing that seems likely is that such a ruling won’t come before tomorrow—since the Biden administration’s response explained it would need at least that much time to continue unwinding the policy. And if the Court does deny relief, it’s hard to imagine that (1) there won’t be some statement about why; or (2) there won’t be several public dissenting votes.

All of which is to say, stay tuned…

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SCOTUS Trivia: Confirmed Nominees Who Didn’t Serve

Continuing last week’s trivia’s theme of Justices who served briefly, this week’s trivia focuses on the short list of SCOTUS nominees who were confirmed by the Senate but never served on the Court.

For all but one of them, the disparity was because the President submitted their name to the Senate first, and asked if they were interested only later. That’s happened only once since the Civil War—when Roscoe Conkling turned down his successful 1882 nomination by President Chester A. Arthur. (My favorite pre-Civil War example is when President Madison tried to nominate John Quincy Adams in 1811 while he was Minister to Russia, and it took awhile for the news to reach St. Petersburg; when Adams politely declined, Madison instead nominated the 32-year-old Joseph Story.)

The last person confirmed to the Supreme Court by the Senate who did not serve was Senator Roscoe Conkling (R-N.Y.), who turned down President Arthur’s nomination in 1882

The only example of a nominee who neither declined nor accepted the confirmation involves the one nominee who died after his confirmation but before taking the oaths of office. And it’s a name familiar to students of American history and constitutional law, but not for his connection to the Supreme Court: Edwin Stanton.

Stanton was, most famously, Secretary of War during the Civil War, a role that led one recent biographer to dub him “Lincoln’s Autocrat.” An organizational genius if a notoriously difficult and micromanaging boss, Stanton might well have been the third most important figure in the Union war effort, after Lincoln and Grant. Stanton also organized the manhunt for Lincoln’s assassins, and spearheaded the controversial (and, as Marty Lederman has persuasively argued, unlawful) military commission that tried eight of the conspirators.

Stanton was also at the middle of Congress’s attempt to remove President Andrew Johnson in 1868, as it was Stanton’s firing by Johnson that violated the “Tenure of Office Act,” a statute limiting the President’s ability to remove Cabinet nominees without the Senate’s approval that was enacted largely to precipitate Johnson’s impeachment (in a 1926 ruling by Chief Justice Taft, the Court would effectively conclude that such a statute was unconstitutional, holding that principal officers confirmed by the Senate had to serve at the pleasure of the President).

When Grant assumed the presidency in 1869, Congress restored the size of the Court to nine seats, giving Grant one seat to fill. Although a number of folks lobbied for Stanton, Grant instead chose his Attorney General, Ebenezer Hoar (who would be rejected by the Senate in February 1870). The very next day, Justice Robert Grier announced his retirement as of February 1, 1870, perhaps to create another opportunity for Stanton. Five days later, on December 20, Grant nominated Stanton for Grier’s seat, and the Senate confirmed him the same day. Stanton wrote a grateful letter to Grant the following day, accepting the nomination.

Unfortunately, Stanton’s health, which had increasingly become a problem for the 55-year-old Ohioan (among other ailments, he suffered from chronic, severe asthma), quickly took a turn for the worse. On the night of December 23, Stanton’s respiratory system finally failed him, and he died from a coronary thrombosis in the early hours of December 24—153 years ago Saturday. Grant would have Stanton’s commission, which had already been signed but not yet delivered, sent to Stanton’s family posthumously.

There’s some debate among historians about whether Grant, knowing of Stanton’s ill health, nominated him to the Court (and the Senate confirmed him) solely as a magnanimous gesture for a dying man. But there’s no contemporaneous evidence of this view; Stanton’s health had been a recurring issue, not a new one, and there’s no evidence that Grant nominated him or the Senate confirmed him without expecting him to eventually take his seat.

But perhaps the nerdiest piece of Justice Stanton-related trivia comes via James Satola, from the December 2017 issue of The Federal Lawyer. As Satola explains, in the Ohio Judicial Center in Columbus (home, among other things, to the Ohio Supreme Court), there are plaques for the “eight” Supreme Court Justices from Ohio (as of 1933, when the building was completed). In addition to the seven who actually served (Chief Justices Chase and Waite and Justices McLean, Swayne, Mathews, Day, and Clarke), there is a plaque for “Edwin McMasters Stanton,” whose tenure is noted as "1869-1869.”

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