But the current border crisis is not a COVID crisis. 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 policymakersers of last resort. //

While acknowledging the dire threat to America in the current uncontrolled immigration across our southern border, we should all be opposed to using public health edicts for other policy goals. I thought we all learned that lesson over the last two years, but it may bear repeating. Likewise, we should be horrified that a policy based on an expired emergency is not only being used but is one of the few effective tools in combatting illegal immigration. It really isn’t possible to oppose DACA, which is based on a memorandum from a Secretary of Homeland Security who left office nearly a decade ago, and support Title 42.

I think Justice Gorsuch is correct. The Supreme Court is using this case as a vehicle to define the degree to which states have an interest in immigration law. So to that extent, it may be a victory.

But, as Justice Gorsuch also notes, the courts should not be forced into policymaking roles. As conservatives, we’ve opposed this consistently when the courts get involved in making up voting laws and the boundaries of congressional districts. Keeping Title 42 in place is wrong because the reason for the regulation has expired. It is wrong because it insulates Congress and the Biden White House from their failure to address the illegal immigration crisis. It is wrong to have the courts dragged into doing what the Legislative and Executive Branches will not do.