Justice Gorsuch slams concentrated executive power amid massive surge in illegal immigration

“Executive officials across the country issued emergency decrees on a breathtaking scale.” he wrote. “Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions too.”

“Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide.” Gorsuch continued. “They used a workplace-safety agency to issue a vaccination mandate for most working Americans. They threatened to fire non-compliant employees and warned that service members who refused to vaccinate might face dishonorable discharge and confinement. Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.”

He warned, “We need only a nudge before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties—the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes.”

“But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government.” the Justice concluded. “At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”

From March of 2020 to April of 2022 the federal government issued Title 42 orders. The emergency decree was issued to restrict immigration into the country, reasoned by the need to prevent the spread of COVID-19 from other countries.

In the case of Arizona v. Mayorkakas, the states sought to have the federal government enforce Title 42 orders indefinitely. They argued, “the federal government would not defend Title 42 orders as vigorously as they might.” They claimed that ending the orders violated the Administrative Procedures Act because the admin didn’t provide advance notice.

Title 42 orders expired on May 11.