Thursday, January 5, 2023

Here’s A Better Reason To Cheer For The Supreme Court’s U.S. Border Reprieve: The SCOTUS Victory Here is Not Mandating Immigration Policy, But Addressing the Manipulative Use of Consent Decrees and Settlement Agreements

Mani Albrecht/U.S. Customs and Border Protection
Here’s A Better Reason To Cheer For The Supreme Court’s U.S. Border Reprieve:
The SCOTUS victory here is not mandating immigration policy, but addressing the manipulative use of consent decrees and settlement agreements.
On Tuesday, the Supreme Court ruled the Trump-era suspension of entry at the Mexico border must remain in place while the high court considers an appeal filed by 19 states that sought to intervene in the case to defend the policy. The order in Arizona v. Mayorkas prompted cheers from Americans frustrated with the Biden Administration’s failure to defend our country’s borders. But it is not the justices’ job to make or enforce immigration policy, and conservatives applauding the stay for that reason should re-think their response.
And yet, there is a legitimate reason to celebrate the Supreme Court’s decision to hear the appeal in Arizona v. Mayorkas, as it provides the high court the vehicle to end the abusive use of friendly settlement agreements to sidestep the political or administrative process.
In response to Covid-19, in March 2020, the Center for Disease Control and Prevention (CDC), issued a regulation immediately suspending entry at Canadian or Mexican ports of entry of individuals lacking proper travel documents or whose entry would otherwise be illegal. Informally called the “Title 42 system,” after the title of the United States Code that authorized the CDC to suspend admission into the country to prevent the spread of a communicable disease, the rules established in March 2020 were extended several times, with the final rule issued on Sept. 11, 2020.
Aliens subject to expulsion from the country under Title 42 filed suit in Huisha-Huisha v. Mayorkas in January of 2021 in a federal court in D.C., alleging the Trump Administration’s CDC expulsion rules violated various federal statutes. While the Huisha-Huisha case was pending, in April 2022, the CDC, now under the Biden Administration, entered an order terminating its previous Title 42 orders. In response, a coalition of states filed suit against the Biden Administration in a federal court in Louisiana, alleging the order terminating the Title 42 system violated the Administrative Procedure Act (APA) because the CDC issued the rule without the required notice and comment period, and also because the rule was arbitrary and capricious.
The states’ lawsuit argued that the CDC’s termination order was “‘plainly at war with other policies of the Biden Administration,’ such as refusing to lift the mask mandate on airline travelers, refusing to repeal vaccination mandates, and insisting on discharging members of the military who sought religious exemptions from those mandates.”
The states also argued the “CDC utterly failed to consider the consequences of the Termination Order on the States, which even Biden Administration officials acknowledged would lead to an ‘influx’ of migrants, inflicting a ‘surge on top of a surge’ that would irreparably harm the States.”
A federal judge in the Louisiana case concluded the Biden Administration violated the notice-and-comment rulemaking requirements of the ADA and entered a preliminary injunction preventing the CDC’s termination order of Title 42 from going into effect. The Biden Administration filed an appeal of the Louisiana district court’s decision with the Fifth Circuit Court of Appeals.
Three months later, on November 15, 2022, in Huisha-Huisha v. Mayorkas, the federal court in D.C. ruled in favor of the plaintiffs in their challenge to the Trump Administration’s Title 42 system. Specifically, the D.C. federal court declared the regulations and all decisions issued by the CDC and the U.S. Department of Health and Human Services suspending the right of entry under Title 42 were “arbitrary and capricious” in violation of the APA. --->READ MORE HERE
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