One of this Supreme Court term’s most high-profile disputes — the Title 42 immigration case — took another step toward becoming moot this week when the justices took it off the argument calendar. But its fate is still unclear.
I wrote about the case earlier this month after the Biden administration told the court in a brief that, with the Covid public health emergency ending May 11, the appeal seeking to continue the Trump-era policy that expelled migrants at the southern border over Covid concerns should also end. The justices seem to think there was merit to that mootness point, because they removed the case from the argument calendar on Thursday. (It was previously scheduled to be argued March 1).
The case, Arizona v. Mayorkas, is technically about whether Republican-led states can intervene in the dispute in favor of the Title 42 policy, rather than the legality of the policy itself. But in taking the case last year, the Supreme Court also blocked a lower-court ruling that would have ended the policy (over dissent from not only the three Democratic appointees but, interestingly, Trump appointee Neil Gorsuch).
So despite being removed from the argument calendar, the case remains pending at the court, in all its procedural shadiness that helps keep Title 42 in place for now. But attorneys general for more than a dozen GOP-led states are desperately fighting for the justices not to declare it moot. In a brief Friday, they noted that the court could still decide the case before the emergency ends in May and, yet more desperately, they argued that the case wouldn't be moot even after the emergency ends in May.
One would think that, with the court’s action of removing the case from the argument calendar, it might officially declare the case moot. On the other hand, the court didn’t need to block the end of the program or take the case up in the first place, so I'll believe the court's next move when I see it.