Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes an opinion issued on January 23 (Part I); and cases granted review on December 27, 2022, and January 13, 2023 (Part II).
Case Granted Review: Arizona v. Mayorkas, 22-592
Arizona v. Mayorkas, 22-592. The Court limited the grant of certiorari to the question whether 19 States (the Petitioning States) “may intervene to challenge the District Court’s summary judgment order,” which vacated and set aside the federal government’s so-called Title 42 policy. The Title 42 policy, implemented by the Trump Administration to curb the spread of Covid-19, permits immigration officials to expel certain arriving noncitizens who would otherwise be held in congregate settings. The policy was instituted under 42 U.S.C. §265, which authorizes the Centers for Disease Control and Prevention (CDC) to “prohibit, in whole or in part, the introduction of persons” from foreign countries where there is a “communicable disease . . . for such a period of time as [it] may deem necessary” to “avert such danger.”
The intervention question arises in the context of litigation challenging the Title 42 policy and the Biden’s administration’s efforts to terminate it. In January 2021, a group of asylum-seeking families filed the underlying challenge to the policy in federal district court in D.C. The district court preliminarily enjoined the policy, but was partially reversed by the D.C. Circuit, which also denied Texas’s request to intervene on appeal. Soon after, in April 2022, the CDC determined that the Title 42 policy was no longer necessary to protect the public health and issued an order terminating it, effective May 23, 2022. A federal district court in Louisiana, however, entered a preliminary nationwide injunction blocking that termination at the request of several States (including the Petitioning States). Louisiana v. CDC, No. 22-cv-885, 2022 WL 1604901 (W.D. La. May 20, 2022). An appeal from that injunction is pending before the Fifth Circuit. Then, on November 15, 2022, the district court in the underlying D.C. case entered summary judgment for the plaintiffs, vacating and setting aside the Title 42 policy. The district court temporarily stayed its order to allow the federal government time to transition its immigration processing system. The federal government then informed the Louisiana district court that the Title 42 policy would be vacated upon the stay’s expiration, at which point there would be “no legal authority for the government to continue to enforce the Title 42 policy.”
Six days after entry of the district court’s judgment, the Petitioning States filed a motion to intervene. But before that request was resolved, the federal government filed a notice stating its intent to appeal and to ask the D.C. Circuit to hold the appeal in abeyance pending the Fifth Circuit’s decision in Louisiana and CDC’s forthcoming notice-and-comment rulemaking to replace the Title 42 policy. Two days after the government filed a notice of appeal with the D.C. Circuit, the Petitioning States requested permission to intervene in the appeal. They also sought, but were denied, a stay pending appeal. The D.C. Circuit denied the intervention request, reasoning that it came too late: the Petitioning States had a “clear opportunity” to seek intervention much earlier, given that they “kn[ew] that their interests in the defense and perpetuation of the Title 42 policy had already diverged or likely would diverge from those of the federal government.” Indeed, Texas (one of the movants) had recognized this divergence when it sought to intervene during the first appeal, and the Petitioning States were alerted to the divergence during the Louisiana litigation.
In seeking review of that ruling, the Petitioning States submit, at the threshold, that they have standing to challenge the Title 42 policy’s termination because it will trigger an increase in border crossings that will cause them economic harm. They submit that the federal government will not adequately represent their interests because, in their view, the government colluded with the plaintiffs to obtain the termination of the Title 42 policy and thus will not vigorously defend it on appeal. The Petitioning States, moreover, contend that the D.C. Circuit incorrectly denied their intervention motion on timeliness grounds. The dispositive point, they say, is that they moved to intervene in the appeal two days after the notice to appeal was filed. They maintain that there was no need to seek intervention earlier in the proceedings because the federal government was previously appropriately defending the Title 42 policy; any such request, they add, would have been futile, as shown by Texas’s unsuccessful attempt to intervene. And granting intervention, they assert, will cause the federal government and the plaintiffs no prejudice, as it will facilitate a resolution of the underlying case on its merits.