CLARENCE PAGE: What’s the Supreme Court’s Title 42 case about?
Hint: It’s not the pandemic.
January 5, 2023 - 9:00 pm
Amid the constant partisan fussing, feuding and fighting in Washington these days, I was gratified — however briefly — by a moment of bipartisan agreement at the Supreme Court.
The moment came in a dissent from the high court’s recent ruling to keep the controversial Title 42 policy in effect pending the court’s full review of the case, which has been brought by Republican officials in 19 states.
You hear a lot about Title 42 in the fractious border debate. The policy was enacted as a public health move by the Trump administration during the COVID-19 pandemic to allow for the speedy expulsion of migrants who might bring more of the virus into the country. It was due to expire until Chief Justice John Roberts last week granted a stay to that expiration.
In an expression of what I would call a keen grasp of the obvious, Justice Neil Gorsuch, a conservative and Donald Trump appointee, complained in a dissenting opinion that the high court was being used for political purposes. Gorsuch described the court’s decision as “unwise,” noting that the emergency on which Title 42 rested “has long since lapsed.”
“The current border crisis is not a COVID crisis,” he said. “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.”
He was joined by Justice Ketanji Brown Jackson, a liberal appointed by President Joe Biden. Liberal Justices Elena Kagan and Sonia Sotomayor said they would have denied the states’ application.
Good for them, I say. On an issue this historically fraught and divisive, who can blame the high court for approaching it like a pond full of alligators? Let the high court rule on constitutional questions and, wherever possible, leave the policymaking to elected officials, who are directly accountable to the voters.
Gorsuch also hints strongly at another truth: The debate over Title 42, a public health policy, isn’t really about public health. It’s about politics. And no issue in these times is more politically divisive than immigration and border security.
The last time Washington had enough agreement to seriously discuss broad, comprehensive immigration reform was in 2005 in a bill introduced by Sens. John McCain, an Arizona Republican, and Ted Kennedy, a Massachusetts Democrat. It incorporated legalization, guest worker programs and border enforcement. But the bill never reached the floor for a vote.
Now both sides are so dug in to their respective positions that even a narrow procedural matter such as Title 42 takes on mammoth importance, defining different sides and political tribes — and making political pawns out of millions in continuing episodes of political theater.
Both sides do it. Republicans tend to keep churning the waters as immigration is an almost unbeatable motivator for their voting base. Democrats push back with an agenda of reforms that, no matter how measured or moderate, their political rivals blast as “open borders.”
Yet the challenges continue. Sen. Dick Durbin, founder of the “Dreamer” movement, fights for permanent protections for youths brought to the United States illegally, but like Trump’s “wall,” Congress keeps kicking that issue down the road.
Yet, record numbers of people continue to come across the border, many of them seeking asylum to which they are entitled under law, but the backlog of cases has grown to keep them waiting for months or years to be processed.
And that doesn’t even begin to deal with updating policies for temporary visas for agricultural workers and high-tech workers, whom employers desperately want to have.
Those are just a few of the serious challenges that our White House and Congress need to face amid changing times and problems too complicated to be solved by something so simple, impractical and inadequate as a border wall.
Memo to Congress and the White House: Don’t lean on the courts to solve all of our problems. That’s not what we elected you for.
And happy new year.
Contact Clarence Page at firstname.lastname@example.org.