Court Torpedoes Biden Policies on Border, Health

           The Supreme Court threw judicial restraint out the window last week [Aug. 24-26] with hastily considered decisions that torpedoed Biden administration policies on border security and public health. The rulings in two “shadow docket” cases, issued without full briefing or oral argument, forced the administration to reinstitute the so-called “remain in Mexico” policy for asylum applicants and scrapped the administration’s policy to protect financially strapped tenants from evictions during the COVID-19 pandemic.

            Elections have consequences, it is often said, but apparently not when the unelected Supreme Court takes charge of contentious policy issues. The Biden administration’s O-for-two batting average in its first shadow docket cases is in stark contrast to the Trump administration’s record of prevailing in two-thirds of the unprecedented number of emergency applications that Trump’s lawyers brought to the Court over a four-year period.

            Chief Justice Roberts may believe that the justices shed their partisan backgrounds after donning their black robes, but the record of the Republican-majority Court strongly suggests the opposite. As one telling example, the nine justices split precisely along partisan lines in Alabama Ass’n of Realtors v. Health and Human Services on a straightforward question of statutory interpretation in striking down the CDC’s moratorium on evictions in areas with high incidence of COVID transmission.

            In issuing the moratorium, the CDC relied on a broadly phrased grant of authority in a public health statute “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases . . .”

            The code section’s opening sentence is followed by a second sentence that lists fumigation, pest extermination, and destruction of infected animals or articles as some of the steps authorized. The six Republican-appointed justices who provided the votes for the unsigned decision construed that list to limit the permissible steps, while three Democratic-appointed justices in dissent applied a different maxim of statutory construction to reach the opposite conclusion that the list was illustrative, not exhaustive.

Writing for the three liberal justices, Breyer noted the historical precedent that New York City had imposed limits on evictions at the height of the Spanish flu epidemic. “If Congress

had meant to exclude these types of measures from its broad grant of authority,” Breyer reasoned, “it likely would have said so.”

            In short, a “plain text” approach to the statute in question could have supported either of the two possible outcomes in the case. The Court’s majority – presumably, the six Republican-appointed conservatives – resolved the question by finding that the “balance of equities” favored the landlords’ finances over the tenants’ health and the government’s interest in limiting community spread.

            To be clear, the choice between those two turned not on law, but on policy. In a tweet, Eric Segall, a law professor at Georgia State University, aptly suggested that the Court “should stay out of policy disputes and stay in its lane.”

Liberal justices were oddly silent two days earlier when the Court effectively forced the Biden administration to adopt a Trump-era policy – misleadingly labeled as “migrant protection protocols” -- to force asylum applicants to wait in Mexico while authorities in the United States consider their applications.

The issue in Biden v. Texas et al. was whether how far the Biden administration needed to go in elaborating the reasons for rescinding the Trump administration’s policy on asylum applicants. A Trump-appointed federal judge in Texas agreed with the red states challenging the administration that Biden’s Department of Homeland Security had been “arbitrary and capricious” in rescinding the policy.

In fact, DHS secretary Alejandro Mayorkas had written a seven-page memorandum detailing the reasons for his decision—specifically, that the program was unjustified by the resources required to implement it and incompatible with the  administration’s border strategy and foreign-policy objectives. Judge Matthew Kacsymaryk found Mayorkas’s reasons inadequate and ordered the administration to reinstitute the disfavored policy.

The administration asked Kacsymaryk to delay the injunction, but he refused. The federal appeals court in Texas similarly refused to stay the ruling to give the administration time to develop an orderly plan to restart a policy suspended seven months earlier and unenforced for Trump’s final months in office.

At the Supreme Court, the administration quoted an assistant DHS secretary as saying that it would be “near impossible” to re-establish the policy by the deadline that the judge had set. The administration also quoted a State Department official as warning that resumption of the policy would create “a humanitarian and diplomatic emergency.”

The Trump administration had come to the Court in eleven cases with similar pleas to get out from under adverse rulings in lower courts. And each time the Court obliged.     But the Court declined to give the same consideration to a Democratic president, elected with a popular vote majority.

Instead, the Court refused the administration’s plea with a single paragraph that found the administration was unlikely to show that it had not been “arbitrary and capricious” in rescinding the previous policy. Others have written at greater length than allowed here about the irony of the Court’s decision to take over immigration policy, an area traditionally left to the executive branch, not the courts. Here, as one example, is Ian Milhiser’s excellent analysis.