Winter has been coming for many executive actions that occurred during the height of the Covid-19 pandemic and the cruel cold winds of judicial review have reached Title 42, the vehicle used to quickly expel migrants from Canada and Mexico due to risk of Covid spread. Senior District Judge Emmet Sullivan rejected government claims of Chevron deference and found the Title 42 order was arbitrary and capricious. This judicial decision will further exacerbate the border calamity that is already breaking records monthly and turning every state into a border state. It also stands as the latest example of courts rejecting a deferential stance towards the unitary executive that we have chronicled here.
Briefly, the issue in this case was whether the Center for Disease Control and Prevention (CDC) had used its legislative mandate properly to expel migrants in order to prevent the spread of Covid-19. Because the CDC is not an immigration enforcement agency and had no means of enforcing its order blocking aliens from entering, it delegated its authority to "stop the spread" to Customs and Border Protection (CBP) at the Department of Homeland Security (DHS). The CDC continued issuing new orders, as opposed to rules required by the Administrative Procedures Act (APA), up until April 2022.
Neither the CDC nor CBP issued formal rules through the APA process with notice-and-comment to the public. The idea was that this was an emergency that required swift action. While this would certainly make sense in March 2020, it became less defensible as time marched on and allowed more opportunity for following the legislative requirements and hearing from the regulated public. These same concerns have cropped up in many Biden Administration actions that seek to open the border without a hint of notice to the public who will suffer the consequences.
However, Judge Sullivan unfortunately cited the Chief Justice Roberts precedent that the Executive Branch must explain its actions sufficiently to satisfy the undefined standards of judges. That precedent was set to save President Obama’s Deferred Action for Childhood Arrivals (DACA). This type of precedent would replace the unitary executive with judicial supremacy, which is just rearranging the deck chairs on U.S.S. Tyranny.
Judge Sullivan, in other words, thinks the problem is that the CDC did not explain its actions to his satisfaction. He wrote that the CDC did not consider “least restrictive means” or “adequately consider alternatives,” and did not consider the negative effects for the migrants being expelled. Objections of this kind, no matter how valid, are not the foundation for restoring power to the people to make their laws. They stand as a means to allow unelected judges to make the laws based on their own arbitrary standard of how well actions are explained. Judges should be determining whether actions before them are allowed under the Constitution and the laws of the United States, not whether or not the action was explained under some arbitrary rubric known only by the judiciary.
The problem with using Title 42 and the CDC to create immigration policy was clear from the start: Emergency powers, by definition, are time-limited (ignoring “Temporary” Protected Status, which has been extended indefinitely in defiance of the law). The problems we are facing at the border are persistent, and Title 42 was always going to be temporary. Expecting a temporary public health emergency to quell the border crisis was never going to be a good long term bet. This is all the more frustrating because Congress has already provided the power in the immigration laws to stop the border crisis. There is simply no need for public health orders and the CDC to be our savior at the border.
Rather than looking to the CDC, then-President Trump could have used the statutorily authorized process defined in 1182(f) in March 2020 to bar entry to limit the spread of Covid-19. We know he was aware of this authority because he used it in his travel ban that was upheld by the Supreme Court. Why would the President rely on public health orders issued outside of APA requirements when he had clear authorization to reach the same result using existing immigration law?
Further, using Covid-19 and the public health muddies the waters concerning the real dangers of the ongoing border calamity. While public health is a major concern, so are public safety from dangerous drugs that are destroying communities and the untold tragedies of trafficking in women and children, and the economic well-being of the American people competing with the influx of migrants for scarce resources and jobs. When the emergency surrounding Covid-19 inevitably receded, those issues would remain and must be addressed.
The solutions are the same. Our government must gain operational control of the border with sufficient staff and physical barriers and remove incentives for migrants to make the dangerous trip to the United States. It requires ending catch and release with forthcoming employment authorization and replacing it with what the law requires which is detention pending conclusion of removal proceedings. It requires mandatory E-Verify that bars employers from hiring individuals without authorization to work. It requires applying asylum laws as written to protect those escaping government persecution in the first safe country they reach (there is no right to asylum in your country of choice), not those seeking a better economic situation in the United States. The ability to illegally enter the United States and live and work freely are the definitive pull factors causing millions to flaunt our laws. Fundamentally, as long as people around the world believe they will be allowed to stay and work in the United States upon arrival, they will keep coming. The Biden Administration has proven that definitively. The CDC was never going to change that, only Congress and the President can disabuse the world of that notion.
JARED CULVER is a Legal Analyst for NumbersUSA
