Judging Freedom - SCOTUS temporarily pauses Title 42

Episode Date: December 20, 2022

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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, December 20th, 2022, five days to Christmas. It's about 1040 in the morning here on the east coast of the United States. Late yesterday afternoon, the Chief Justice of the United States signed an order sort of holding in place the litigation over Title 42. What is Title 42? Okay, this is legislation enacted by the Congress when Donald Trump was president, which allowed the president to return to Mexico, everyone coming north on the Mexican-Texas, Mexican-Arizona, Mexican-New Mexico border, on the theory that they might be contagious with COVID, and therefore they should be returned to Mexico and ultimately to their place of origin, which would be Mexico's issue, for public health reasons.

The Trump people, it is alleged, turned many people, or the Trump administration, turned many people away who were not carriers of COVID, but the law allowed them to do that because of fear that COVID would spread. The law was upheld as a valid, legitimate public health, public safety mechanism. Now in the Biden administration, when the Centers for Disease Control has opined that COVID is not a problem, that it's not the public health problem that it was two years ago. The Biden administration is in a bit of a quandary. It's political tugging to the left, wants the immigrants to come into the country, but the border is a mess. To make that more complex, state attorneys general challenged the Biden administration's failure to use title 42, whereupon a federal judge in Texas town found title 42 unconstitutional

unconstitutional. How could that be? Okay. Here's how, uh, because the fifth amendment protects persons, not just Americans. Uh, and it says the government cannot protects persons, not just Americans. And it says the government cannot impair life, liberty, or property without due process of law. And because federal law says if you are escaping a tyrannical government, you can seek asylum in the United States. A federal judge found Title 42, which permitted the immediate expulsion without a hearing, unconstitutional because it deprived these people of the right to seek asylum. And then the Fifth Circuit Court of Appeals sitting in New Orleans upheld that. So as of this morning, Title 42 is unconstitutional.

However, that holding of unconstitutionality has been put in abeyance by the Chief Justice until the other eight justices can vote on it. They're going to vote probably today on whether or not to uphold or to reject the Chief Justice's holding in place order. If they reject it, that's the end of the line. Title 42 is no longer the law, and the government must accept asylum applications. If they accept the Chief Justices' hold-in-place order, then the Supreme Court itself will decide if Title 42 is the law. If Title 42 is the law, then the Biden administration can go back to expelling everybody that's coming north without due process and without an asylum hearing on the

theory that they are public health risks, even though the CDC has said they're not. If Title 42 is not the law, then the Biden administration must accept everybody who comes north. If they come illegally and are not asylum seekers, they can be held in federal institutions. then they're free to roam about the country until their asylum hearing. We all know the border is a mess. We all know it's time to clean up the border. Listen, whether you're in favor of open borders or whether you're in favor of nobody coming in, whether you're in favor of stopping people because of their religion and their place of origin, or whether you're in favor of just an individualized scrutiny of everybody that wants to come in. Whatever your views on the border are, it's obvious that it's a mess and it may even be beyond the ability of the Biden administration to handle. The Biden administration is conflicted.

It took an oath to uphold the laws. It also has a sort of bleeding heart side to it, which I understand, that wants to bring in, you know, the poor, the destitute, those escaping totalitarianism in Latin American countries. But whatever your view, it is clear that the immigration laws need to be reformed. I thought it would happen now in the lame duck session of this Congress. I don't think it's going to happen because two weeks from today is a new Congress. I don't know who the speaker is going to be, but the Republicans are going to have a majority in the House. So any progress that's been made on immigration will have to be reset to zero, and they'll have to start all over. I don't know where this is going to go. It's fascinating from a constitutional point of view. It's heartbreaking from a personal

perspective, not my personal perspective, of course, but the perspective of those who are trying to get in the country to escape totalitarianism, and they can't do so. But expect something from the Supreme Court probably as soon as tonight or tomorrow morning. More as we get it. Judge Napolitano for judging freedom.