The emergence of immigration policy as a constant source of seeming contradiction under President Joe Biden was a development few expected. Improbably, this was underscored this week by Supreme Court Justice Neil Gorsuch — a conservative appointed by Donald Trump.
At Chief Justice John Roberts’ behest, the high court on short notice took up a request to block a lower court’s ruling terminating a March 2020 order by the Trump-run Centers for Disease Control and Prevention. The directive said an obscure public health law known as Title 42 allowed U.S. border agents to immediately turn away migrants who have crossed the southern border to prevent the spread of COVID-19. U.S. District Court Judge Emmet Sullivan ruled in November that since public health circumstances were now much different, continued use of the rule was “arbitrary and capricious.”
Biden once would have seemed likely to agree. As a candidate, he ripped Title 42 as another Trump tactic to demonize immigrants. But since becoming president, Biden has warmed to Title 42 as a blunt tool to limit the huge surge of migrants attempting to enter the U.S. since he took office and dropped other Trump-era rules. Gorsuch acknowledged the concerns of Republican governors over this surge, but noted that “the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.” The five other high court conservatives did not agree, meaning that until fuller court proceedings next year, Biden gets to keep using Title 42 — but to control immigration, not on public health grounds.