January 18, 2022
SCOTUS orders T42 to continue while it considers red states’ intervention appeal
Red states’ efforts to keep Title 42 in place—under which migrants at our southern border are summarily expelled, ostensibly to prevent the “introduction” of COVID-19, without being allowed to apply for asylum (as is their right under U.S. law)—have unfortunately borne fruit yet again. Since our last newsletter, the DC Circuit denied the states’ request to intervene in the litigation in which T42 was vacated (nullified), holding that the states waited too long. But soon after, in a 5-4 vote the Supreme Court granted the red states’ request to stay (pause) the vacatur of the Title 42 policy while it considers whether the DC Circuit was right to deny intervention. The Court will only consider the intervention question; it will not consider the legality of Title 42 itself. By ordering a stay, the Court likely extended the inhumane T42 policy for months as a decision on the intervention appeal isn’t likely to come before June.
TX files suit over new “public charge” regulation
On January 5—and as expected—Texas filed suit challenging the “public charge” regulation DHS issued in September. Since the late 1800s, the United States has denied green cards to noncitizens likely to become a “public charge,” which DHS has long interpreted to mean those primarily dependent on the government for subsistence. DHS under Trump, however, issued a regulation to dramatically (and cruelly) expand that interpretation. The regulation challenged by Texas—which went into effect on December 23—repeals the Trump-era rule and adopts in its place the historical “public charge” definition. Although the regulation is on solid legal footing, Texas again judge shopped to get Judge Tipton (the only judge in the division where Texas filed).
Arizona agrees to remove shipping container “border wall” after getting sued for trespassing
On a brighter note, before leaving office Arizona Gov. Ducey waived the white flag on his “border wall” of junk, agreeing—in response to a trespassing suit by the federal government—to remove the thousands of welded-together cargo containers he ordered installed (illegally) on federal and tribal land (at a cost of more than $80 million). Arizona’s own lawsuit about the containers was stayed the day after Katie Hobbs was inaugurated, giving Arizona’s new governor (who’s been critical of this stunt) time to decide whether to continue litigating the case.
As always, we'll keep you posted on these and other cases.