Gorsuch laments Covid-era restrictions as Supreme Court removes Title 42 case from its calendar

By Ariane de Vogue, CNN Supreme Court Reporter

(CNN) — The Supreme Court announced Thursday that it would formally remove a case concerning the controversial Trump-era immigration policy known as Title 42 from its calendar, likely because the Covid-19 public health emergency that serves as the legal underpinning of the program has expired.

In a brief order, the court said that it was wiping away a federal appeals court opinion in the case “with instructions to dismiss” the dispute as moot.

The Trump administration invoked Title 42 at the onset of the coronavirus pandemic. The public health authority allowed border officials to swiftly turn away migrants encountered at the US Mexico border in the name of Covid-19 prevention.

But Justice Neil Gorsuch took the opportunity Thursday to write more broadly on the impact the Covid crisis had on civil liberties, raising an alarm that state and federal governments had at times gone too far in using the pandemic as a pretext to tackle other issues.

The judiciary, he said, had allowed itself “to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. “

He reiterated his belief that during Covid, government officials were too eager at times to suspend civil liberties.

“Make no mistake – decisive executive action is sometimes necessary and appropriate,” Gorsuch wrote. “But if emergency decrees promise to solve some problems, they threaten to generate others.”

He said that the Title 42 orders served as “emergency decrees that severely restricted immigration to this country for the ostensible purpose of preventing the spread of Covid-19.” And suggested that in immigration and in other areas the government was too quick to rely on Covid to reach a desired goal in another area.

He reiterated a sentiment he had expressed at an earlier phase of the Title 42 case:

“I do not discount the states’ concerns about what is happening at the border, but the current border crisis is not a COVID crisis.”

Writing broadly, Gorsuch said that since March 2020, “we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.”

He noted that school doors were shuttered, and local leaders imposed shutdown orders “forcing people to remain in their homes.” Churches were closed and violators were faced with possible sanctions.

“Even courts allowed themselves to be used to perpetuate public health decrees for collateral purposes,” Gorsuch added.

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