Arizona v. Secretary of Homeland Security, No. 22-592. Statement accompaying Order remanding for reversal motion to intervene issued May 18, 2023.
During the Covid-19 pandemic, the Executive Branch issued orders — the Title 42 Orders — which limited entry into the United States as a defense against the spread of contagious disease.
When those orders lapsed of their own accord, states concerned with border issues petitioned to have the orders remain in effect, complaining that the lapse of the orders violated the Administrative Procedures Act, as notice and the opportunity to present comments was not afforded prior to the dissolution of the orders.
In contrast, a class action of asylees sought and obtained universal vacatur of the Title 42 orders, arguing that there never existed any authority to issue the orders.
The concerned states sought to intervene in the class action brought by asylees.
The Court of Appeals for the District of Columbia Circuit affirmed the trial court’s denial of the state’s motion to intervene.
The states petitioned the United States, which granted review, the result of which was that the Title 42 Orders remained in effect until the legislative and executive branches declared that the Covid-19 emergency to be over.
All this rendered both cases in litigation moot, but this result did not sit well with Justice Gorsuch.
In a statement accompanying the order of remand, Justice Gorsuch remarked of the grave abrogations of freedoms that governments large and small visited upon the population during the “Covid-19 pandemic” under the rubric of ’emergency’ measures because of a perceived threat to public health.
The threat to democratic rule was and is equally if not more grave, Justice Gorsuch opined, for the capacity to usurp individual rights by virtue of emergency orders has been established. Notwithstanding that some measures did not survive challenge, the disruption and diminution, if not denial, of individual and economic freedoms has been substantial. The capacity to compel conformity with government edicts by exploiting fear has not gone unnoticed. The ability of federal judges in one jurisdiction to issue orders effective throughout the nation — “cosmic” injunctions — is itself an expansion of power that provokes concern.
Just Lawful 