SCOTUS Bails Out the Biden Administration with Title 42 Order

Legal Gavel

On December 27, 2022, the Supreme Court of the United States (SCOTUS) bailed out the Biden Administration for now by granting an Emergency Application for Stay in favor of nineteen non-party states that jointly applied for relief in Nancy Gimena Huisha-Huisha, et al. v DHS, et al, SCOTUS Dkt No. 22A592.

Briefly, the Emergency Application for Stay was submitted to the SCOTUS by the nineteen non-party states arguing they were aggrieved by a December 16, 2022, D.C. Court of Appeals court order denying the states’ request to intervene and join a class action lawsuit originally filed in January 2021 by a group of illegal alien plaintiffs against the Secretary of the U.S. Department of Homeland Security (DHS) and other federal government officials with respect to the lawfulness of Title 42 public health expulsion policies.

The alien plaintiffs in this class action are seeking to prohibit the U.S. federal government from expelling illegal aliens out of America based on Title 42 public health expulsion policies claiming the policies to be arbitrary and capricious.

The nineteen states are requesting that the SCOTUS suspend all orders and legal proceedings in the case to consider the states’ position that the D.C. Court of Appeals must be reversed, and the states be permitted to join the ongoing class action lawsuit and litigate the issues.

In their well-reasoned briefs, the states contend that they absolutely can demonstrate all three requirements necessary to prevail on a motion to intervene in accordance with the Federal Rules of Civil Procedure, specifically Rule 24, which provides:  1) A motion to intervene must be timely filed; 2) The non-party must have protectable interests in the case and its outcome; and 3) No existing party to the litigation adequately represent the non-party’s protectable interests.

Through briefs, the states inform the SCOTUS, as follows:

1. Timeliness. Their motion to intervene and join the litigation is proper and was timely filed with the trial court, initially, and timely filed at each opportunity, thereafter.

2. Protectable Interests. The states have “obvious protectable interests” with respect to this case which focuses on the ongoing invasion onto American soil at our southern border, foreseeably resulting in severe economic and administrative impairment to the states and intolerable risks of serious harm to their residents, to wit the federal government appears to have forsaken its duties. The states explain, “the termination of Title 42…would unleash a catastrophic shock to the states social services and law-enforcement systems…which will inflict substantial economic harms.”

3. Not Adequately Represented. The states’ obvious interests in the issues and outcome of this case are not adequately represented by any party.  The states further advise the SCOTUS, “the position of [the federal government defendants] is that they can wantonly inflict harms on the states simply because they choose…harming [the states] gratuitously.  That is not merely specious but represents a fundamental abuse of power.”

States, particularly border and red states, are on the front lines in the fight for our national sovereignty and the safety and security of all American citizens.  Our southern border is being invaded.  The numbers are staggering and continue to climb.  In fact, data published by the U.S. Customs and Border Patrol Protection (CBP) demonstrate that during October and November 2022, there were 561,291 encounters between our CBP and illegal aliens, up from 385,689 encounters reported for the same months one year prior (Oct – Nov 2021). And looking back on the same months just two years ago (Oct – Nov 2020), encounters have more than doubled from 179,657.  How quickly these numbers are climbing is offensive.

As usual, the administration blames Congress, Republicans, and the previous administration for the calamities they create and the catastrophes they own.  Their failures are remarkable and yet they play the blame game even with American lives and the lives of victims of human trafficking at stake.

The reckless decisions and dangerous political posturing by this administration are absurd and have inflicted unacceptable injury to our great nation.  By their own words, including written proposals, the President’s Executive Orders, DHS regulations,  and verbal promises and invites to illegal aliens and even terrorists, this administration has overtly encouraged and given aid and comfort to the millions of illegal aliens that have flooded our nation and continue to do the same.

This last-minute reprieve by the SCOTUS offers the Biden Administration at least a couple of months to course correct.  Let’s hope they take advantage.

For further background on this case and the fragile state of our national sovereignty, visit our website’s Knowledge Center to read “End of Title 42 Expulsions Pending.” 

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