Arizona v. Mayorkas

Cite as: 598 U. S. ____ (2022) 1
SUPREME COURT OF THE UNITED STATES
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No. 22A544 (22–592)
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ARIZONA, ET AL. v. ALEJANDRO MAYORKAS,
SECRETARY OF HOMELAND SECURITY
ON APPLICATION FOR STAY
[December 27, 2022]
The application for stay pending certiorari presented to
THE CHIEF JUSTICE and by him referred to the Court is
granted. The November 15, 2022 order of the United States
District Court for the District of Columbia, case No. 1:21–
cv–00100, is hereby stayed. Applicants suggested this
Court treat the application as a petition for a writ of certio-
rari; doing so, the petition is granted. The parties are di-
rected to brief and argue the following question: Whether
the State applicants may intervene to challenge the District
Court’s summary judgment order.
This stay precludes giving effect to the District Court or-
der setting aside and vacating the Title 42 policy; the stay
itself does not prevent the federal government from taking
any action with respect to that policy. The Court’s review
on certiorari is limited to the question of intervention.
While the underlying merits of the District Court’s sum-
mary judgment order are pertinent to that analysis, the
Court does not grant review of those merits, which have not
yet been addressed by the Court of Appeals.
The Clerk is directed to establish a briefing schedule that
will allow the case to be argued in the February 2023 argu-
ment session. The stay shall terminate upon the sending
down of the judgment of this Court. The order heretofore
entered by THE CHIEF JUSTICE is vacated.
2 ARIZONA v. MAYORKAS
GORSUCH, J., dissenting
JUSTICE SOTOMAYOR and JUSTICE KAGAN would deny the
application.
JUSTICE GORSUCH, with whom JUSTICE JACKSON joins,
dissenting.
From March 2020 to April 2022, the Centers for Disease
Control and Prevention responded to the COVID–19 pan-
demic by issuing a series of emergency decrees. Those de-
crees—often called “Title 42 orders”—severely restricted
immigration to this country on the ground that it posed a
“serious danger” of “introduc[ing]” a “communicable dis-
ease.” 58 Stat. 704, 42 U. S. C. §265. Fast forward to a few
weeks ago. A district court held that the Title 42 orders
were arbitrary and capricious, vacated them, and enjoined
their operation. On appeal, Arizona and certain other
States moved to intervene to challenge the district court’s
ruling, arguing that the federal government would not de-
fend the Title 42 orders as vigorously as they might. The
D. C. Circuit denied the States’ motion. In response, the
States have now come to this Court seeking two things.
First, the States ask us to grant expedited review of the
D. C. Circuit’s intervention ruling. Second, the States ask
us to stay the district court’s judgment while we review the
D. C. Circuit’s intervention ruling. This stay would effec-
tively require the federal government to continue enforcing
the Title 42 orders indefinitely. Today, the Court obliges
both requests. Respectfully, I believe these decisions un-
wise.
Reasonable minds can disagree about the merits of the
D. C. Circuit’s intervention ruling. But that case-specific
decision is not of special importance in its own right and
would not normally warrant expedited review. The D. C.
Circuit’s intervention ruling takes on whatever salience it
has only because of its presence in a larger underlying dis-
pute about the Title 42 orders. And on that score, it is un-
clear what we might accomplish. Even if at the end of it all
Cite as: 598 U. S. ____ (2022) 3
GORSUCH, J., dissenting
we find that the States are permitted to intervene, and even
if the States manage on remand to demonstrate that the
Title 42 orders were lawfully adopted, the emergency on
which those orders were premised has long since lapsed. In
April 2022, the federal government terminated the Title 42
orders after determining that emergency immigration re-
strictions were no longer necessary or appropriate to ad-
dress COVID–19. 87 Fed. Reg. 19944. The States may
question whether the government followed the right admin-
istrative steps before issuing this decision (an issue on
which I express no view). But they do not seriously dispute
that the public-health justification undergirding the Title
42 orders has lapsed. And it is hardly obvious why we
should rush in to review a ruling on a motion to intervene
in a case concerning emergency decrees that have outlived
their shelf life.
The only plausible reason for stepping in at this stage
that I can discern has to do with the States’ second request.
The States contend that they face an immigration crisis at
the border and policymakers have failed to agree on ade-
quate measures to address it. The only means left to miti-
gate the crisis, the States suggest, is an order from this
Court directing the federal government to continue its
COVID-era Title 42 policies as long as possible—at the very
least during the pendency of our review. Today, the Court
supplies just such an order. For my part, I do not discount
the States’ concerns. Even the federal government
acknowledges “that the end of the Title 42 orders will likely
have disruptive consequences.” Brief in Opposition for Fed-
eral Respondents 6. But the current border crisis is not a
COVID crisis. And courts should not be in the business of
perpetuating administrative edicts designed for one emer-
gency only because elected officials have failed to address a
different emergency. We are a court of law, not policymak-
ers of last resort.