Title 42, Textualism, and Hypocrisy
The fight over ending Title 42 highlights Republican hypocrisy
One of the symptoms of “Long COVID” is brain fog, which seems to have infected Republicans. Just take the kerfuffle over the possible repeal of “Title 42.” But is it brain fog or simply hypocrisy? Let’s see.
Title 42
“Title 42” is the short-hand term for the Trump-era policy of restricting the entry of immigrants from Mexico as a public health measure to prevent the spread of COVID. Title 42 is the broad section of the U.S. Code dealing with public health, and one provision, Section 265, allows the government to restrict entry into the country to prevent disease during a public health emergency. The current debate over “Title 42” is specifically about that section of the Code.
In March 2020, as COVID spread around the world, the CDC declared a public health emergency. As part of that declaration the CDC invoked Section 265 and allowed for the restriction and expulsion of unauthorized migrants, as well as those seeking asylum. Former President Trump publicly said that he’d invoked “Title 42” to close the border with Mexico. It was later revealed that this was under the advice of Steven Miller, an extreme immigration hardliner. Given the circumstances of the worldwide pandemic, it’s hard to argue that this wasn’t a rational policy choice.
But Trump routinely denigrated COVID and the public health measures taken to deal with it. So it seems likely that he wasn’t using Title 42 out of concern for public health. Clearly, he was doing so to prove to his base that he was being tough on immigration.
Trump was far from alone in this skepticism of COVID. During the darkest early days of the pandemic, many Republican governors openly mocked the disease, the science behind it, and the public safety measures taken to deal with it. These included Kristi Noem of South Dakota, Doug Burgum of North Dakota, Mark Gordon of Wyoming, Kim Reynolds of Iowa, Pete Ricketts of Nebraska, and Brad Little of Idaho. Many opposed broad shut-downs, or even targeted school shut-downs, mask mandates, or even simple measures like social distancing and frequent hand-washing.
When Joe Biden was running for president in 2021, he said that he would repeal Title 42 and re-institute a more humane policy at the border if elected. Not surprisingly, conservatives howled with outrage. But when Biden took office he left Title 42 in place, perhaps because he had other more important issues to deal with, like convincing the public to get the recently available COVID vaccines.
During much of 2021, as more and more people were getting vaccinated, conservative states rolled back many public safety measures, like school shutdowns and mask mandates. As state legislatures returned to work in 2021, many conservative states passed laws limiting these measures, and preventing similar measures in the future. Some states passed laws banning mask mandates, others enacted legislation that would prevent schools or businesses from requiring COVID vaccines, and others limited the ability of state and local authorities to order shutdowns of private companies. Most of these were the conservative states you would expect, including Kansas, Arkansas, Idaho, Tennessee, Montana, Wyoming, North and South Dakota, Utah, Arizona, Texas, Oklahoma, Kansas, Iowa, Missouri, Louisiana, Michigan, Indiana, Kentucky, Alabama, Florida, South Carolina, and West Virginia.
The Republican freak-out
Finally, on April 1, 2022, the CDC announced that the pandemic was winding down and the public health measures imposed to deal with it would be removed. You would think that Republicans across the country would have cheered this news, but you’d be wrong. And you’d be wrong because one of the policies that would be removed was the Title 42 border restrictions. Almost immediately, the Republican Attorneys General of Arizona, Louisiana, and Missouri filed suit in federal court to prevent the administration from ending the Title 42 policy. You may recall from a few paragraphs previous, that the governors and Republican leaders from those three states had long opposed public safety measures to address COVID. Now the same Republicans were trying to keep at least one of the measures in place. Perhaps it was the brain fog, or maybe it was just plain hypocrisy. There were at least 20 other conservative states that filed similar lawsuits to stop the repeal of Title 42, but the Louisiana case was the first to be decided.
The law
Conservatives claim that they are “Constitutionalists,” which means they revere the Constitution and strictly adhere to its words. A subset of this concept is called “textualism.” The most famous contemporary conservative justice and legal scholar, Antonin Scalia, developed the theory of textualism, and it was the foundation of his legal reasoning. Scalia said that the words of the law or statute control its meaning, and only where the textual meaning is ambiguous, should you go beyond the text and engage in interpretive analysis. All of the conservative members of the Supreme Court have embraced textualism to one degree or another.
So here is Section 65 of Title 42 in full:
Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.” (Emphasis added.)
I’ve highlighted the pertinent parts of the statute. I should note that the statute refers to the Surgeon General, but in the modern world, the Surgeon General works hand in hand with the CDC and other public health agencies. The law says that when U.S. public health officials determine that there is a communicable disease in a foreign country, the president can “prohibit … the introduction of persons … from such countries … to avert such danger.” Pretty simple and straightforward. No ambiguity. It goes on to say that “the President” can prohibit these persons “for such period of time as he may deem necessary for such purpose.” Again, crystal clear.
The ruling
Judge Robert Summerhays, a conservative Trump appointee, issued a 47-page ruling on May 16, 2022, preventing the Biden administration from repealing Title 42. The length of the ruling alone seems strange since the law is clear. So perhaps the judge was trying to justify or rationalize his decision.
The judge said that the repeal of the CDC public health order has to go through the standard APA (Administrative Procedures Act) process, which requires notice, comment, and hearings before any government action can be taken. This is standard procedure for agency rule-making, but it is not the norm for emergency orders. And more importantly, it is clearly not required by the very words of the statute, which clearly says that the statute applies “for such period of time as [the president] may deem necessary for such purpose.” It should also be noted that the president has issued many public health emergencies over the last few years: natural disasters like hurricanes or wildfires, deal with the opioid crisis, and the Zika Virus outbreak, among others. And in not a single one of those cases was the emergency ended after application of the standard APA procedures. [See here for the full list of recent declarations]
So the judge’s ruling is not based on the text of the statute, or precedent. It is based solely on reaching the desired policy outcome. Brain fog, or hypocrisy? The full ruling is available here.
The appeal
The Biden administration appealed the ruling to the Fifth Circuit, but a number of conservative states intervened and asked the Supreme Court to rule on the matter. On Dec 19, 2002, Chief Justice John Roberts issued a stay, preventing the Biden administration from repealing Title 42 while the case is decided. On December 27, 2022, the full court voted on whether to accept certiorari and hear the case. Five of the conservative justices, Roberts, Thomas, Alito, Kavanaugh, and Barrett, voted to grant cert and hear the case. These five conservative justices, who have publicly said that they are textualists and apply the law strictly as written, ignored the clear words of the statute, and said that there are other issues that need to be analyzed.
The three liberals voted not to hear the case. The surprising vote came from Justice Neal Gorsuch. He said that the text is clear. The emergency is over, and the statute says that when the emergency is over the exclusion provision no longer applies. He said that “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. We are a court of law, not policymakers of last resort.”
Now we are waiting to see if the Supreme Court will actually hear the case. If they do hear the case, we will learn whether these conservative justices are actually textualists or merely hypocrites.
