The Supreme Court rejects partisan agendas by citing Title 42.

The Supreme Court’s ruling last week to keep in place a Trump-era immigration order This can be understood only as five conservative justices who advance a conservative political agenda in violation clear legal rules.

The court reversed lower court rulings that allowed the Biden administration, without giving any reasons or explanation, to lift a restriction that bars asylum seekers from crossing the border, which was placed early in the COVID-19 epidemic.

The federal law — referred to as Title 42 — permits the Centers for Disease Control and Prevention to prohibit people from coming into the U.S. to avert the spread of a “communicable disease” present in a foreign country. Trump’s administration announced in March 2020 that it would use this power for expulsion of Americans who enter the United States from Canada and Mexico. Title 42 was created in 2000. used To turn migrants around, 2.5 million times.

However, the public health situation doesn’t justify the exclusion of people from the country to prevent the spread COVID. The Biden administration acknowledged this in April and announced it would revoke the Trump order. A conservative judge from Louisiana’s federal District Court blocked the decision shortly thereafter, claiming that the Biden administration had not followed proper procedures. The Biden administration’s appeal of this ruling is pending.

In November, U.S. District Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He ruled that the expulsion policy was no longer justified based in light of the present state of the pandemic, which includes widely available vaccines, treatments and increased travel in the United States.

Nineteen Republican attorney generals from the states opposed that ruling and asked to appeal it to the U.S. Court of Appeals. They were not parties to this lawsuit, and they cannot be involved in a case for the first-time at the appeals stage. Following its well-established law on the subject, the federal Court of Appeals denied permission for the states to intervene. The Supreme Court reviewed the decision by the states.

December 27, 2007 in Arizona vs. Mayorkas, the Supreme Court, in a 5-4 ruling, not only said that it would hear the states’ appeal, but that it would require that the Biden administration continue to use Title 42 to expel migrants.

The court’s action makes no sense for several reasons. Title 42 grants the government the power to close the border if it is necessary for a public emergency or the prevention of a communicable disease. The litigation does not dispute that COVID doesn’t warrant restrictions on immigration.

Justice Neil M. Gorsuch, a staunch conservative, joined the three liberal justices in dissenting from the court’s ruling and stated: “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.”

The states intervene because they believe Title 42 is necessary for a continuing health emergency. They also want to use Title 42 as a pretext in closing the borders.

In fact, in another case now pending on the Supreme Court’s docket — on whether the Biden administration’s student loan forgiveness program is justified as a response to the pandemic emergency — 12 of the states in the Title 42 case argued in their brief that “COVID-19 is now irrelevant to nearly all Americans.”

The Supreme Court’s order is senseless for another reason: The only issue before the court is whether the states can intervene in the case. It’s not about whether the District Court made an error in ending Title 42’s expulsion of migrants. Even if the states were allowed to join the case, they can’t plausibly make the case that COVID concerns still justify immigration expulsions at this point.

Why did the court go against the law so much? It is not because the five conservative justices think that the COVID emergency still calls for the immigrant restriction. These were the justices who, in January 2022, said that there was not a sufficient public health emergency To allow the Biden administration mandate that employers with more than 100 employees get vaccinated or tested.

Five conservative justices decided not on Title 42’s purpose, which was to prevent the spread of a communicable illness, but rather on their partisan agreement on immigration issues with conservatives. We should expect better from the court.

Erwin Chemerinsky, a contributor to Opinion and dean of UC Berkeley School of Law, is Erwin Chemerinsky. His latest book is “Worse Than Nothing: The Dangerous Fallacy of Originalism.”

This story was originally published in Los Angeles Times.