December 20, 2022
IRLI urges Supreme Court to suspend lower-court cancellation
WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the Supreme Court urging it to grant a stay sought by a consortium of states of a ruling by the DC federal district court striking down the policy of expelling illegal aliens at the border due to the COVID-19 public health emergency.
Previously, when the Biden administration attempted to make large exceptions to the Trump-era COVID expulsion policy, IRLI, representing Texas, was successful in getting those exceptions struck down. Later, when the administration responded by attempting to rescind the restored policy completely, Texas joined a lawsuit to block that rescission. In that suit, the district court granted an injunction, which remains in place while the Fifth Circuit Court of Appeals hears the administration’s appeal.
Meanwhile, in a separate case filed in DC by the ACLU challenging Centers for Disease Control (CDC) authority to summarily exclude border-crossers in a public health emergency under Title 42, IRLI briefed the DC Circuit on the issue. The DC Circuit agreed with IRLI and ruled the CDC indeed has “sweeping authority” to expel border-crossers in a public health emergency. Nevertheless, following remand to the DC district court, the district court recently struck down the Trump-era COVID expulsion policy as “arbitrary and capricious.”
The current administration has officially appealed this ruling, but asked for no suspension of the lower court’s injunction pending appeal. Rather, it wants the injunction in place and its own appeal put on hold pending the outcome of the Fifth Circuit case. That would achieve its purpose, otherwise blocked by the Texas district court injunction, of ending COVID expulsions, regardless of whether it succeeds on its appeal of that injunction.
Under these circumstances, various affected states, including Texas, have moved to intervene in the case, on the solid ground that their interests are not adequately represented by the administration. The states appealed the DC district court’s ruling as Intervenor-Defendants, and moved the Supreme Court to suspend that ruling pending further decision by the Court.
In today’s brief supporting that suspension, IRLI shows that the district court’s ruling fails to give the required deference to the CDC in making public-health determinations, but substitutes its own judgment for that of the agency. IRLI points out that it does not matter that the CDC now wants to rescind COVID expulsions, since the policy the court struck down was made when the agency did think it was necessary, and courts must look at the reasons given by the agency for its decision at the time, not later changes of position. For that matter, as IRLI points out, the COVID-19 public health emergency still exists, according to the federal government.
“It is almost a miracle that the COVID-19 expulsion policy is still in place,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The administration wants to end it, and now a DC activist court has struck it down for them. Only court actions, in which IRLI is proud to play a central role, have kept it going. In this latest one, we hope the Supreme Court sees the vast unlikelihood that the district court’s flawed and unprincipled ruling will survive appeal by the states, and suspends that ruling until it can reverse it.”
The case is Arizona v. Mayorkas, No. 22A544 (Supreme Court).
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