After the Supreme Court extended the Title 42 public health order allowing rapid removal of illegal aliens at the border on Dec. 27, Arizona Attorney General Mark Brnovich, one of the architects of the legal strategy to keep the policy alive, celebrated the legal victory in an exclusive interview with The Epoch Times.
Brnovich and his supporters say the Biden administration failed to follow the correct procedures for terminating the Trump-era policy, which they say is desperately needed to stanch the flow of unauthorized migrants into the United States. States backing the request for emergency relief said getting rid of the policy, as Biden officials want to do, would make things even worse at the border and incentivize more illegal aliens to enter the country.
Although some critics, including some constitutional conservatives and a conservative Supreme Court justice, say the Title 42 policy may be unconstitutional, Brnovich said on Dec. 28 that the political right can no longer afford to cede ground to the left, which has been using the legal system for decades to accomplish its policy objectives.
“The left has used the courts to gummy up policy changes for generations,” said Brnovich, a Republican who leaves office in a few days.
“And the bottom line is ... that if Joe Biden is not going to do his job, then [we] have to do everything we can. Because what is going on at our southern border, obviously, is costing us not only fiscally, but it’s costing us in human lives lost. And so it is a life and death issue,” the state attorney general said.
“So I’m doing everything I can--I continue to do everything I can. And I think at the end of the day, if Joe Biden wants to make that policy change, he should do it in a manner that’s consistent with the law.”
Under the Trump administration, the U.S. Centers for Disease Control and Prevention (CDC) issued a Title 42 order regarding individuals who have recently been in a country where a communicable disease is present. The order allows the government to promptly return to Mexico, without an asylum hearing, individuals captured crossing the border illegally on the theory that their presence may pose public health risks.
For a time, the Biden administration reluctantly continued enforcing the Trump-era order after Joe Biden assumed the presidency in January 2021.
Homeland Security Secretary Alejandro Mayorkas justified the public health edict in September 2021. “We are doing this out of a public health need,” Mayorkas said at the time. “It is not an immigration policy. It is not an immigration policy that we would embrace.”
Although on April 1 of this year, the Biden administration said it would end the Title 42 order by May 23, courts blocked the order and the policy continued in effect at the border.
Responding to an emergency application by Republican attorneys general in 19 states, led by Arizona and Louisiana, on Dec. 19, Chief Justice John Roberts issued a temporary stay preventing the Biden administration from dropping Title 42. On Dec. 27, the full Supreme Court extended the stay, issuing an emergency order on a 5-4 vote allowing the program to continue. The court is expected to hold oral arguments in the case in February 2023.
As is usually the case in emergency orders, the Supreme Court did not explain why it was blocking Judge Sullivan’s order, but four justices—conservative Neil Gorsuch, plus the three liberals, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—voted to deny the order.
In his dissenting opinion, which was joined by Jackson, Gorsuch said the high court was involving itself needlessly in the legislative process.
Gorsuch wrote that he did not “discount the States’ concerns,” and acknowledged, as the Biden administration did in court papers, that ending the Title 42 order would “likely have disruptive consequences.”
But the public health order is an inappropriate policy tool here, he wrote.
“[T]he current border crisis is not a COVID crisis,” Gorsuch wrote.
“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.”
Brnovich said even though he appreciates “what Justice Gorsuch said, I respectfully disagree.”
Conservatives need to use the courts to fight back against left-wing abuses, he said.
“What the left has done is they have filed lawsuits, alleging violations of, for example, the Administrative Procedure Act, and the rule-making process is so convoluted.”
“In an ideal and perfect world, the federal government wouldn’t be promulgating all these rules and regulations. I mean, my goodness, it was a plank in the Republican Party platform in 1980, to get rid of the federal Department of Education. And now you’ve got the federal government, and even Republican states, begging the federal government for money,” Brnovich said.
“And then when the federal government gives you money, then there’s all these strings attached. Next thing, you know, they’re jamming critical race theory down your throat and trying to indoctrinate your kids and require vaccines,” he said.
“And so that’s the problem. As the federal government gets bigger and bloated, it becomes unresponsive. And so in an ideal world, the states wouldn’t have to sue the federal government saying they’re doing something illegal or unconstitutional. But at this moment, at this time in history, that this was the best tool that I had in my toolbox.”
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