Last week Chief Justice Roberts issued a stay on Title 42, pending a full court review in February.  Today the full court upheld the statute.  

For context, Texas and a group of over a dozen other states sued in Federal court asking for delay of the end of “Title 42,” a covid-era restriction on migration.  Under Title 42, immigration authorities are able to quickly remove many of the migrants they encounter – without giving them a chance to ask for asylum protection or other protections under U.S. law. The restrictions were put in place as a public health order by former President Donald Trump’s administration in March 2020 when COVID-19 was just beginning to surge in this country.

The Federal court has been somewhat back and forth on the issue, most recently deciding that it was “illegal” and requiring an end to Title 42 by December 21, 2022. Last week Chief Justice John Roberts granted the Texas-led suit’s request to delay the end of the program until the Supreme court could make a full review.  

Today the Supreme Court ruled 5-4 granting the states’ request to prevent the winding down of the pandemic border restrictions known as Title 42 – and agreed to decide in its February argument session whether 19 states that oppose the policy should be allowed to intervene in its defense in the lower courts.  

Title 42 was fairly explicitly used by Trump to repel migrants.  Whether the reason was political or truly for public health, we’ll never know, but on the surface Title 42 served both purposes.   Here’s the problem: rather than the legislative branch, that is the House and the Senate, making law to deal with immigration, the US is relying on executive branch manipulations to “redefine” areas of law.  Title 42 dragging on is a failure of the legislative branch to make any actual effort to address immigration. 

Justice Gorsuch agrees with this position, saying in his dissent that the “current border crisis is not a COVID crisis,” and that “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.”

 Second, the fate of Texas and the rest of the appealing states is now in the hands of yet another Federal overlord.  Sure, this week Texas got a “win” in the form of the Title 42 stay from the Court, but either way, Texas has no control over the conditions on its border.  Even worse, in the current situation our “only hope” lies in the US Supreme Court.  As a Texan, I don’t particularly like turning over my autonomy to a court somewhere else, no matter how “supreme.”  

Last week Governor Abbott said the end of Title 42 would bring “total chaos” to the border.   Today he’s a bit happier, but no more effective.  Abbott alone holds the key to a real solution: treating the migrant surge as an invasion.  He’s used the word, and has deployed all kinds of troops and even some armored personnel carriers, but the rules of engagement we’re working under won’t let us drop folks off back in Mexico.  All he has to do is say the word, and there are National Guardsmen and women, Border Patrol officers, DPS officers, and all kinds of other folks willing to send migrants back over the line.  We are well past the point where the risk of unchecked migrant chaos more than trumps the legal battle that would occur within the US courts after Texas makes the move.  The most obvious answer to the immigrant crisis is that an independent Texas could set its own border and immigration policies.  Texas suffers because we have a lawyer for a governor, who’s afraid to step out into uncharted legal territory.  Texas suffers because we have complaining US Senators who use soft language and can’t propose solutions.  Texas suffers because even our entire US House delegation can’t move the needle on immigration because of the anti-action inertia of the Federal government.  Texas suffers when we depend on executive orders and rule interpretations instead of actual proactive policy.  Texas suffers when we depend on the Supreme Court to give us permission to deal with issues.  Every single one of these areas of suffering can be fixed quickly in an independent Texas.  We wouldn’t be stuck with US laws, US courts, US congressional representatives, or UN-influenced rules of engagement.  We could solve the border problem ourselves.