Strict Scrutiny - Meager Sentences

Episode Date: September 13, 2021

Kate and Leah are joined by Elizabeth Wydra and Aaron Reichlin-Melnick to discuss more of the Supreme Court's orders coming out of the shadow docket. First up is the Migrant Protection Protocol, also known as the "Remain in Mexico" program from the Trump Administration. Then it's a look at the Court's decision to vacate the CDC's latest eviction moratorium, which allows evictions to resume. Both orders ruled against the Biden administration and were divided along ideological lines.  Follow us on Instagram, Twitter, Threads, and Bluesky

The episode you're about to hear was recorded before the litigation challenging SB-8, that's the Texas abortion ban, reached the Supreme Court. So while we talk in this episode a lot about the shadow docket, you may notice we don't talk about the Texas ban and the Supreme Court's role in allowing that ban to go into effect, and the timing is the reason. So hope you enjoy the episode. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leo Littman. And I'm Kate Shaw. And today's episode is going to be a memorial service for the very moderate institutionalist

6-3 conservative court that lasted not even a full term, but we heard so much about during the last term. And by the way, we should actually say technically the October term 2020 isn't even over yet. It will wrap up once this new term, OT 2021, begins. But hey, that didn't stop people from writing about how this court was so moderate and institutionalist and nonpartisan back in April. Maybe a better way of describing this episode is a eulogy for all of those takes about the moderate institutionalist nonpartisan court where the justices vote non-ideologically all the time. Okay, but we are somewhat getting

ahead of ourselves. So let's introduce our guests for today. We are joined by two very special guests. We have Elizabeth Wydra, who's the president of the Constitutional Accountability Center, and Erin Reikland-Melnick, who's policy counsel at the American Immigration Council. So Elizabeth and Erin, welcome to the pod. It's great to have you. Thank you so much. It's great to be with you. Likewise. Thank you for having us. Elizabeth and Erin are going to help us break down two really important orders we recently got off the court's shadow docket, which is a term that refers to the orders and sometimes opinions the court issues outside of its usual procedures. That is,

without oral argument or full briefing in a case, often on wildly expedited timelines, in which it is answering sometimes hard questions, making law for the parties and for all of us with days and sometimes hours to read and consider and write. So spoiler alert, both of these orders shockingly ruled against the Biden administration, split the court along completely ideological lines, and arguably seem to apply different sets of principles based on the justices' views about the underlying policies. That's the high-level preview. Maybe before we get into the weeds, a word from our friends at American Constitution Society's Broken Law podcast.

If you're enjoying strict scrutiny, we encourage you to also check out Broken Law, the podcast about the law, whose interest it serves, and whose it does not, produced by our friends at the American Constitution Society, including ACS President Russ Feingold. Broken Law covers a wide range of legal topics that directly impact our lives, from reproductive freedom to labor rights to the legal legacy of September 11th. If you care about the rule of law, our democratic legitimacy, and ensuring that the law is a force for protecting the lives of all people, check out Broken Law. This podcast is designed for lawyers and non-lawyers alike because the law impacts us all. Subscribe to Broken Law today wherever you get your podcasts. So let's now get into the weeds. So the first order we wanted to talk about today was in Biden versus Texas, which is a challenge to President Biden's

decision to end, really Secretary of Homeland Security Ali Mayorkas's decision to end, the so-called MPP program, right? The Migrant Protection Protocol, which is also commonly known as Remain in Mexico policy of the Trump administration. So the case came to the Supreme Court on the Biden administration's request to stay a district court decision that had enjoined the administration's decision to end the MPP program. The Fifth Circuit had refused to grant the administration a stay of that decision and the Biden administration requested intervention by the Supreme Court. So maybe let's first ask Erin or Elizabeth, could you guys start by walking us through what is the MPP program?

Yeah, MPP, also known as Migrant Protection Protocols, even though migrants were decidedly not protected and were offered virtually no protocol, was a program put in place by the Trump administration in January of 2019. By the time the program was formally suspended with no new admissions into the program on the day that Biden took office, roughly 70,000 people who sought asylum in the United States had been sent back to Mexico and given court dates and told to show up so that they could seek asylum while still waiting in Mexico. Importantly, the program had effectively already been suspended in March of 2020 when the pandemic hit. At that point, all court hearings were suspended indefinitely so that any person who was in Mexico at that time waiting

for a court hearing was essentially told, at some point in the future, potentially years from now, you may eventually get a hearing in your case. We cannot tell you when. It could be anywhere from six months to a year to two years to three years. As soon as the pandemic lets us reopen these court hearings, we'll do it. So the biggest issue with MPP, however, is that those sent back to Mexico were placed in enormous danger through this process. There are at least 1,500 documented cases of violence, including kidnappings, tortures, rapes, and in some cases murders against people put into MPP that have been documented by human rights reporters. Because those are just the cases we know about, the true scale of that is likely significantly higher. And in addition, those who are put through MPP were effectively denied any chance to get a lawyer,

because very, very few American lawyers were ever able to access people in Mexico and vice versa. The representation rates for cases inside the United States is 60%. For those in MPP, it was about 6 to 7%, so literally potentially a tenth of what the representation rate was for those allowed inside the United States. And, of course, winning an asylum case from outside of Mexico and without access to a lawyer is nearly impossible, so those put into MPP had, by the time the program was suspended, about a 1.2, 1.5% grant rate overall. Out of 70,000 people, 521 had ever been granted protection. So that gives you some sense of how impossible this made it to win asylum. And so that is MPP, a humanitarian catastrophe that put people through kangaroo courts,

stripping them of their rights to seek asylum, that was itself an illegal program and had already largely been suspended by the Trump administration more than a year ago. So then why had the Biden administration decided to formally end or rescind NPP once they took office? President Biden himself promised on the campaign trail to end NPP. And this was one of the issues that seemed most personal to him. Jill Biden visited a refugee camp in Matamoros that was a direct creation of MPP while on the campaign trail.

And it appears to have had a strong personal effect on President Biden himself about the only reference to immigration at all that occurred in any of the presidential debates because virtually nobody asked him any questions about immigration, was spontaneously brought up by President Biden referencing the refugee camp in Matamoros that was the direct result of MPP. So not only was it the right thing to do from a legal and a humanitarian perspective, but

it seems that President Biden himself was deeply aware of this program and thought it was inhumane and cruel by forcing people back to Mexico into danger. And so when he took office, DHS immediately suspended new enrollments in the program. And in June, Secretary Mayorkas formally revoked the memoranda that Secretary Nielsen in 2019 used to create MPP. And I think the reasons that Secretary Mayorkas gave were that ending MPP would help broaden the United States engagement with the government of Mexico in order to address, you know, issues related to the border. The secretary also performed something like a cost-benefit analysis and said the costs of the program, you know, including the low success

rates, including the costs of violence, including the enforcement costs and the program, you know, including the low success rates, including the costs of violence, including the enforcement costs and the resources that, you know, ICE and DOJ had to devote to it, compromise other, you know, goals or other policies they might be able to implement in the absence of, you know, expending those resources on MPP. Yeah, and it's important to point out here that the memo that Secretary Mayorkas used to terminate MPP was significantly more detailed than the memo used to create MPP. Secretary Nielsen's four-page memo in 2019 was taken up about half by press releases from DHS and the government of Mexico simply announcing that MPP would go into effect. And there was no cost-benefit

analysis whatsoever in actually putting MPP into place. By contrast, Secretary Mayorkas went through detailed background information about MPP. He laid out extensive reasons for listing what he said were some benefits versus some costs. He listed multiple problems with MPP and reasons that he believed the program should be ended and said that he had considered the interests of border stakeholders, communities, migrants themselves, and had considered that on balance, the costs outweighed any potential benefits of MPP and therefore the program should be ended. Having read it, it was actually one of the most detailed memos of this type that you'll ever see because normally government

officials don't feel the need to become extraordinarily verbose in this kind of decision memo. That is the goal of the General Counsel's Office in writing up a memoranda about whether or not they should do it. But the actual memos usually on programs like this are three to five pages. This was seven pages and way more detailed than even the memo creating DACA, the memo putting in place enforcement priorities, the memos ending DACA. And so it was very clearly done to insulate the termination of MPP from court challenge. Unfortunately, that did not work. OK, so that's actually a good pivot. So we were going to ask, so that's the background,

both the creation of, the operation of, and then the rescission of the MPP program. So then Texas goes to a federal district court seeking to enjoin the Biden administration to continue the MPP program. As you just alluded to, Aaron, the district court did find that the rescission memo violated the Administrative Procedure Act. So why did the district court reach that conclusion? And maybe just by way of reminder for our listeners, the Administrative Procedure Act or the APA is a statute that really governs the practices and procedures of administrative agencies. And among other things, the APA prohibits agency decisions that are arbitrary and capricious. And case law establishes that agency decisions can be arbitrary and capricious because, among other things, the agency fails to consider viable alternatives

or doesn't consider all the relevant evidence or aspects of a problem. So what does the district court say in this case? The district court's decision really rests on two primary premises. First is a completely bizarre reading of the statute that creates MPP, INA 235, also known as 8 U.S.C. 1225. That statute provides, first, that the contiguous territory provision under which MPP was created, that is a permissive statute, that is a may. It gives discretion to the Secretary of Homeland Security to send some individuals to Mexico. And when I say that, I also want to make a brief aside to note that that statute actually does not authorize MPP. The Ninth Circuit has

held that. And the statutory argument is pretty clear that MPP has been illegal from the very beginning. Multiple courts around the country have said that, even though the Supreme Court let the program continue despite the Ninth Circuit saying to the contrary that it was illegal. So that aside, the district court read that statute and said, my reading of the statute is that the Department of Homeland Security, when an asylum seeker is either apprehended inside the country or comes to a port of entry and asks for asylum, has two options. Option one, lock that person in mandatory detention through the expedited removal process

and give them a credible fear interview while locked in detention. And option two, send them to Mexico under MPP. And there are no other options, according to the district court. This is a bizarre claim, considering that there is extensive historic precedent and case law and regulations permitting other things to be done, such as issuing a notice to appear and allowing the person, releasing the person into the United States with a court date. The district court seemed to think that was either never, just simply did not mention that third option, claiming that there were only two options. And so that was the first and biggest reason the district court overruled the MPP terminations, because the district court said, if you are not mandatorily detaining all people crossing the border or nearly all people crossing the border,

then you must send those you can't detain back to Mexico. Otherwise, you are violating the statute. And then secondarily, the district court said that the decision was arbitrary and capricious because it ignored the states of Texas and Missouri's reliance interests on not having more immigrants in their state, which is shorthanding the argument. That was basically it. And also that the Mayorkas apparently didn't properly consider all of the benefits of MPP and spell them out in his memo, despite the fact that he had said, I have considered the benefits and I consider, I think the costs outweigh them. They basically said, like in the Regents' decision, they said, you didn't explain this enough, even though, as I mentioned, one of

the most detailed explanation memos I've seen in years. And I think it's worth spelling out the remedy that the district court ordered after finding these violations with the memo purporting to rescind MPP. So the district court decided the appropriate remedy was a nationwide injunction, you know, and that nationwide injunction under the terms of the district court's opinion required the government to reinstate MPP, quote, until such time as it has been lawfully rescinded, and until such time as the federal government has sufficient detention capacity to detain all applicants for admission. It also required DHS to, quote, enforce and implement MPP in good faith until the secretary provides additional explanation. So again, a federal court has told the federal government, you must enforce this prior policy.

And I just want to jump in and say, you know, it's really an extraordinary decision from the district court. You know, this is not kind of a, you know, legal procedural parsing all of the different parts of the statute and coming to a conclusion that people could disagree with or not. I mean, you know, in addition to the APA issues, the idea that this district court says that MPP is required by the statute, when that's contrary to, you know, both a basic reading of the statute as well as practice from presidents of both parties on dealing with people who are seeking asylum in the United States under our treaty obligations. You know, this idea that the district court is going to oversee the government's diplomatic relations with another country, the country of Mexico,

they're going to basically micromanage all of these aspects of an area that the Supreme Court, even a conservative Supreme Court, has said belongs strictly within the discretion of the federal government with only very specific outlined exceptions. And that's the areas of immigration and foreign relations. And so the federal government or the federal government when there's a Republican president? Yes, we'll see. So that's what we're getting at here. And, you know, I think that's going to be a theme throughout our discussion of these shadow docket rulings. But I just think it's really important to point that out. This isn't just, you know, people could disagree about the merits of, you know, the APA, etc. The contours of what the district court judge did here are really outrageous. Yeah, because you can't implement an MPP without Mexico's consent. So by

requiring the federal government to try to enforce MPP, this federal district judge in Texas has required the federal government to negotiate with a foreign country, Mexico, in order to implement this policy. That is insane. You know, this conservative court has refused to allow damages actions against federal officials when their conduct occurs at the border. It has refused to allow lawsuits under the alien tort statute for conduct that occurs abroad, all based on the theory that the federal courts can't interfere with the political branch's conduct of foreign relations. Here, a federal court is literally conducting foreign relations. It's bonkers. And it's even worse because the federal courts, the lower courts, the district court,

and the Fifth Circuit have effectively said, no, we're not, even though they are very clearly doing it. They both said incorrectly that MPP could be operated without Mexico's consent, that we could just send people back to Mexico and that we don't actually, you know, act unilaterally. But, and now the weird thing here is that Mexico has actually said that MPP is unilateral. And it's a very bizarre thing where the Mexican government has said repeatedly, MPP is not us. We're not doing anything. We're being forced into it. But even so, a unilateral action having an effect on a foreign government is still affecting international diplomacy. And the fact that even if you accept this district court's

decision and the Mexican government's essentially effort to save face by claiming that they're not playing along, even though they are very clearly playing along, it's still nevertheless ordering the federal government to take an action that affects international relations, no matter how you sugarcoat it. So, you know, gosh, this would be a case where you have a district court judge taking an outrageous action. Like, this would be a case where it'd be really helpful to have some appellate court guidance. But guess what? This is a good segue to, you know, the ever-wise Fifth Circuit's intervening decisions.

So, okay, so that was a really helpful overview of the district court's holding both statutory and on the APA question and the kind of really extraordinarily broad, shocking remedial order, both on the kind of diplomacy and foreign relations point. And I was just struck by the specificity of the reports that the district court purports to demand that he receive from these executive branch officials, right? He wants monthly numbers on encounters at the southwestern border, number of aliens expelled. This is reading from the order, monthly applicants for admission under Section 1225. I mean, he is basically positioning himself as the secretary of Homeland Security in all sorts of ways,

who just wants kind of detailed reporting on the operations of his underlings in the executive branch department. And I just, I certainly in recent years cannot recall seeing a district court order that requires this kind of performance from executive branch officials. Okay, so that's the district court order. So of course, guidance from the Fifth Circuit will surely clear things up. So what did the Fifth Circuit do in declining to stay this district court decision? So we get a panel, two Trump nominees, Judges Oldham and Wilson, as well as Judge Elrod. The panel declines to stay the district court decision, therefore leaving the injunction in place, but spend some time trying to make it

sound less insane than it is. So, for example, the panel of the Fifth Circuit focused less on the notion that the federal statute required the MPP program than it did on the notion that the memo rescinding the MPP program violated the Administrative Procedure Act. The Court of Appeals also attempted to kind of re-describe the terms of the injunction, saying, well, the district court didn't actually require the federal government to implement MPP. They just required them to try in good faith, as if, again, recognizing the utter insanity of the opinion, but for the most part, left it in place, didn't meaningfully alter it, just, again, focused more on one of the grounds that the district court had given for why the rescission was unlawful. And they actually went further in some ways than the district court on the arbitrary and capricious analysis, because they brought up independently something that the district court itself had not ruled on, which is a bizarre

agreement. And that word agreement there is in quotes between the Department of Homeland Security and Texas that was negotiated by Ken Cuccinelli, the unlawfully appointed deputy secretary of DHS, senior official performing the duties of the deputy secretary of DHS under the Trump administration, who in the last days before President Biden took office, literally January, they were signing these orders as late as January 19th, signed a bunch of orders with a number of states, effectively giving those states and one sheriff's office in North Carolina, one county sheriff in North Carolina veto power over all immigration actions in the United States saying we are signing a contract that says you have to come to us anytime you want to make any

changes to immigration policy those for a huge variety of reasons we don't need to get into agreements were all utterly ridiculous void illegal not allowable impermissible and even the district court didn't rely on them. But the Fifth Circuit independently brought up in its order a separate reason that the MPP decision was arbitrary and capricious, and it was that Mayorkas didn't consider Texas's reliance interest from that memo, which gives you some sense of how wild this decision is. They don't even mention the obvious reasoning that this memo, which had already expired by this point, by the time Mayorkas signed it and was illegal and void from

the beginning, was obviously not something Mayorkas should have had to consider. But the Fifth Circuit went beyond the district court and said, you also needed to consider this flagrantly false thing here that was very clearly designed specifically so that jurists who wanted to block Biden administration things could use this for this reason. So it effectively laundered in a legal act by Ken Cuccinelli into something that was somehow reputable and that DHS should have considered, which is a completely ridiculous thing for the Fifth Circuit to do, but they did anyway. You describe this as giving Texas essentially a veto over immigration policy, right? It's an MOU that purports to require the Biden DHS to consult with Texas before making any immigration policy

enforcement changes, right? I don't know that it's clear that DHS is required to give any special weight to what Texas has to say. I mean, and I completely agree, there's no way these things are legally enforceable. Also, the MOU as a vehicle is something that the federal government enters into all the time. And they're typically understood to kind of rest on the good faith of the parties. They're not enforceable in any formal way. So I think this is just an insane and bizarre aspect of the decision. But that's what these would, if enforceable, require these Biden executive branch officials to sit down with Texas every time they wanted to change

any aspect of immigration policy and, you know, kind of get Texas's take on those changes, right? And not only that, Texas has 180 days to respond under this MOU. So Texas could simply not respond for six months. And then the Biden administration, you know, under this MOU, and Texas could simply not respond for six months. And then the Biden administration, you know, under this MOU and the MOU said they're typically not enforceable. This MOU purported to claim that any violation of it would give Texas the right to sue in federal court and that the violation of the memo itself would provide standing. Every district court to have considered this, even those in these decisions that have actually held against the Biden

administration have not relied on these. And a few district courts have said these are obviously ridiculous and unenforceable. We're not even going to attempt to use them. But even those who have ruled against Biden on other issues have not tried to enforce these MOUs. So it gives you some sense of how extreme the Fifth Circuit's decision to sort of casually bring up this MOU and say that Mayorkas was required to rely on it is really an extreme action. It's important to note that this comes in the context of the Biden administration seeking just put on hold what the district court had done so it can have reasoned, considered process and air all of these substantive arguments, you know, hopefully make clear to the Supreme Court that these arguments are bonkers, to use the legal jargon. And the Fifth Circuit said no. And so that's where we are, you know, at this particular stage of the story. The Biden administration is seeking to have the district court's order

requiring MPP to be reinstated, just put on hold while it goes to the Supreme Court to try to get the process, well, while it goes to the appellate courts first, just to get the process that would normally be due an important, really big deal immigration ruling like this. As you were talking, Elizabeth, I thought, you know what? Like stare decisis, reasoned, considered process is for suckers. Yeah, basically. The other thing about this day is, of course, that, you know, take a second to think about the injuries here, because Texas claimed an irreparable injury effectively from a few hundred, a few dozen, maybe even a few thousand people potentially being allowed to seek asylum from within the borders of Texas rather than in Mexico. And their claimed harm was education costs and driver's

licenses, in effect, money. The harm to the federal government is massive damage to international affairs. The harm to the people put into MPP is deaths, tortures, kidnappings, and other things. And so the district court effect, and, you know, one of the primary factors for a stay decision should be a balancing of the injuries. You know, the federal government, if Texas was truly injured, could write Texas a check for maybe a couple million dollars in the end of the day. That's a decade of costs that might be, you know, imposed under MPP if we didn't send all asylum seekers back to Mexico. Small amounts of money, tiny amounts of money. No one can bring back, you know, someone who gets murdered in Mexico if they're sent back under MPP.

And nobody can bring back those who are injured while currently waiting in Mexico to be let back in under the ongoing MPP wind down that was suspended as a result of this decision. So when we talk about stay factors, you know, we've talked about many times is that it's all about collapsing the merits into it and ignoring all the other traditional stay factors here. But this is one of the most extreme here. Texas's injury at its heart was claimed was just some cash, cash that they have more than enough of. They just earlier today voted to spend two billion dollars on a border wall. So they are flush with money and they don't need it, whereas that's their irreparable injury versus the irreparable injury to the federal government in having effectively all power over international relations, you know, or not all power, but most, a large portion of its power over international relations prescribed by the district court and the dangers to the people put into MPP, all of which, to be clear, were not mentioned by the district court at all. At no point does the district court's decision ever truly grapple with the human cost of MPP, even though about 300 pages of the administrative record out of 700 pages was about the human cost of MPP. And yet the district court essentially cherry picked a couple of DHS, Trump era DHS

memos and ignored everything else. So the federal government goes to the Supreme Court, asks for a stay. I remember hearing something about how the Supreme Court doesn't like national injunctions against federal immigration policies. It's been inclined to issue some stays of such injunctions against federal immigration policies, doesn't like federal courts interfering in foreign affairs. So they stayed this one, right? That would be wrong. Yes. You know, what we saw when the Trump administration went to the Supreme Court time and time and again on this emergency shadow docket on policies related to immigration and other government actions. The Supreme Court was very deferential to the Trump administration, especially on matters of immigration. We saw that on the merits docket as well as on the shadow docket. And so the Biden

administration coming to the Supreme Court on issues of immigration, on issues of foreign relations where there's generally strong deference to the federal government, you know, was even in a conservative Supreme Court, probably pretty hopeful. And unfortunately, we will never know what the Supreme Court thought, at least at this stage. Hopefully they will at some point take the case on the merits and explain themselves because what we got from the Supreme Court was an unsigned, basically two sentence ruling denying a stay request from the Biden administration and allowing the district court ruling to go into effect that requires MPP to be put back in place. And the appalling thing about this ruling is not just the result, although that is appalling, the fact that we do not know how the justices voted, because you don't know that on the shadow docket. knowns where having the Supreme Court explain its reasoning for allowing this decision requiring MPP to go forward would have been incredibly important. And when you're talking about

tens of thousands of vulnerable people whose lives are going to be deeply impacted, you know, this is a life or death question for vulnerable people seeking asylum in our country without giving those people the dignity and respect of explaining this ruling that has life or death consequences for them. And so I think, you know, it's not just the outcome here, but it really shows the travesty of the shadow docket that we do not have an explanation from them on this particular issue. They just cite in those meager sentences, the previous ruling saying that the Trump administration's DACA rescission was unlawful, that it did not comply with the Administrative Procedures Act. But as we've been discussing, the APA is a very fact

specific, fact bound inquiry about whether a government decision has been adequately reasoned or not. And just describing what the APA requires, that it requires reasonable and reasoned decision-making, shows that it's a fact-based decision. So the reasons why the DACA rescission, why that decision did not comply with the APA, cannot suffice to say that this decision on rescinding the MPP did not comply with the APA, because we don't have the Supreme Court saying that, you know, there wasn't a reason for this, there wasn't a reason for that. And I will say on the DACA case, the conservative justice who wrote that opinion laid out a roadmap for the Trump administration

to write a new memo that would have complied with the APA. And that is useful guidance from the Supreme Court. It's something I would have liked to see from this Supreme Court to the Biden administration, because I want to be clear that they have the opportunity and they should take it to redraft the memo rescinding the MPP program and hopefully bring it back through the courts again and have it passed legal muster. We saw the Trump administration do this, but they had guidance from the Supreme Court of where they went wrong. And part of the tragedy of this ruling on the shadow docket is that the Biden administration and the rest of America that's watching does not have that guidance from the court because they did not explain their reasoning.

And the worst part now is that along those lines is that they are stuck with the reasoning of the district court and the Fifth Circuit on how to redo this. And the district court and the Fifth Circuit made as so we actually filed an amicus brief before the Fifth Circuit and the Supreme Court. And we laid out multiple serious factual errors with the district court before the Fifth Circuit and the Supreme Court. And we laid out multiple serious factual errors with the district court and the Fifth Circuit's opinions, errors that are fundamental to the decision. One of the most basic ones is, you know, an easy one. The district court claimed at one point that DHS had said, issued an assessment saying that MPP had contributed to reducing the number of individuals coming to the border. Except DHS didn't say that. The document the district court cites is a listing of metrics.

And one of the metrics was MPP, quote, contributes to reducing the number of people coming to the border. And the district court lopped off the S of contributes and put in a D and said it was a DHS assessment that MPP contributed. That's one example of just these really big factual errors the district court made. Errors which the Fifth Circuit, because it didn't bother looking at the administrative record, it wasn't concerned with that at all. Very clearly, we put this stuff into an amicus and they didn't cite it once, that all of these factual errors now have to go back to the appell stayed the decision and is allowing it to go into effect while it proceeds through appellate review, all of these problems are going to have to be going to take years before they make it back to the district court. What Elizabeth said is the court cited the DACA decision and specifically the decision saying that the rescission of DACA was arbitrary and capricious as if that explained why the rescission of MPP was also arbitrary and capricious.

But the problem is that the two reasons that the court gave for why the DACA rescission were arbitrary and capricious just don't apply here. So one is the court said the DACA rescission was arbitrary and capricious because the agency had not considered alternatives to ending completely the DACA program. Specifically, DHS had not considered whether to keep deferred removal, but eliminate benefits like work authorization. Here, by contrast, in Secretary Mayorkas's memo, he explicitly said he considered alternatives to ending MPP, such as bringing back revised forms of MPP. But he explained those would still entail significant costs,

undermine negotiations with Mexico, and sidetrack agency resources away from the priorities that they had. Relatedly, the court said the memorandum rescinding DACA was arbitrary and capricious because the agency hadn't considered reliance on the DACA program. Here, by contrast, the program that Secretary Moricus ended was not in effect. There were not reliance interests on a program that was not in effect. The program was briefly in effect for a few months. And the idea that frankly, any reliance interest on the MPP program could even be remotely equivalent to DACA is just itself ridiculous. That being said, do you think

if Secretary Mayorkas came back and rewrote a memo and said, rescinding the MPP is necessary to enforce the Voting Rights Act, would that pass arbitrary and capricious review? You know, you never know. But no, in all seriousness, I mean, look, I think the Mayorkas memo was comprehensive. As Erin said, it was, you know, more comprehensive than most memos of these types. But look, I don't think that this ruling and this action that we're seeing from the Texas courts is a good reason for the Biden administration to give up. I think that, you know, again, it would have been useful for the Supreme Court to give guidance. And as you know, we've talked about citing the DACA ruling does not give that guidance because the factors that were applicable there are not applicable to this memo.

So it would have been helpful for the court to give more guidance on that. But I do think that there is the opportunity to supplement the memo, to go back to the drawing board. And I think that it's important for the Biden administration to fight for this. It's important for the Biden administration to fight for this on this particular issue, for these asylum seekers, for our humane and thoughtful immigration policy. But also it's important broadly, because if there is a signal that using the APA challenges, especially through the shadow docket, where you get them through very quickly, and there's little public attention, if the APA can be used in that manner to thwart the Biden administration's key policy proposals, then I think we are just going to see the floodgates open. And I think it's important for the Biden

administration to push back on that and going back and really working to get the memo that the Supreme Court will accept. I think it, while I'm sure it is frustrating when you've already written a really good memo, I think it's a really important, both symbolic and substantive step to take. I completely agree that they should be putting out a new memo. Of course, the problem is that the district court said you can lawfully rescind it in compliance with the APA, but then you also have to have sufficient detention capacity to detain everybody. And that's going to be a real stumbling block because the district court effectively said, sure, you can go ahead and write a new memo, but I'm still not going to let you get rid of MPP until you meet this detention

capacity issue. Now, the Fifth Circuit's order seemingly maybe limited that, but it's going to be a real fight. And I think it's also when we talk about nationwide injunctions and what's happening under this administration, you know, the misuse of the APA. There were many who said under Trump that the APA was being misused to block his actions. And I think one key difference, you know, that was many of those who are anti-nationwide injunction who are coming back and saying right now, you know, ha ha, you're getting what you deserve because you succeeded so many times blocking the Trump administration. I think the really key difference to note there is that in those situations, first, most all of those decisions were stayed so that they could go through appellate review before going into effect, which is a majorly important thing. And then second, the Trump administration was nowhere near as comprehensive on their

APA work that the Biden administration did with this memo. Many Trump-appointed judges blocked Trump immigration policies on APA grounds because they were just incredibly sloppy. And that isn't a feature of the Mayorkas memo. It is detailed, comprehensive, and under any normal circumstances would obviously clear the APA hurdles. And so that, I think, is one key issue that goes against this idea that this is somehow the same as a judge blocking Trump from an asylum ban. They are just fundamentally distinguishable circumstances. Really fascinating and clarifying discussion. We could go on,

but I want to make sure we have time to discuss the other shadow docket order that we asked you guys to come talk about. And that is the order in Alabama Association of Realtors versus Department of Health and Human Services. This came to the Supreme Court on request, this time by the plaintiffs, challenging a government policy to vacate a stay issued by a lower court decision involving the CDC eviction moratorium. Leah, do you want to go through the procedural history of this one to start us off? Sure. So this has a bit more procedural history to it. Congress authorized a temporary eviction moratorium in the CARES Act in March of 2020. Among other relief programs, it imposed a 120-day eviction moratorium. Then the Center for Disease Control created an eviction

moratorium originally set to expire in December 2020, then extended through December, March, June, and then eventually July. A lower court had found the previous eviction moratorium likely unlawful, but stayed its decision, which allowed the moratorium to remain in effect. And the U.S. Court of Appeals for the D.C. Circuit declined to lift that stay, again, leaving the moratorium in place because it said the moratorium was likely legal. The case went up to the Supreme Court previously, and the court didn't disturb the stay, although Justice Kavanaugh wrote this weird concurrence saying if the CDC planned to extend the moratorium after or beyond July,

it would need additional statutory authority. Strange. Anyways, moratorium expires and lapses. Representative Cori Bush, among others, staged a huge protest, sleeping on the steps of the Capitol, that led the administration to create a new eviction moratorium that was, instead of applying nationwide automatically like the previous one, applied to areas where there was high transmission rates of COVID. The plaintiffs once again challenge it. District Court leaves

the moratorium in place, citing the D.C. Circuit opinion. D.C. Circuit leaves it in place, and the plaintiffs go to the Supreme Court asking the court to vacate the stay of the decision, finding the moratorium unlawful. The Supreme Court vacates the stay and therefore blocks the eviction moratorium. And this time, it actually releases an opinion. So why did it say the moratorium was unlawful? So the Supreme Court in its actual reasoned ruling in this case, although I want to be clear, this is still on the shadow docket. We have not had a CDC eviction moratorium ruling on the merits docket with full briefing from public health experts, etc. And reasoned, like it gives reasons, but I don't know if reasoned is exactly what I would call it. But the big thing they say is that the CDC's moratorium order exceeds its powers under the Public Health Service Act, which is what was invoked in order to support the Biden administration's move here. And that law is extremely broad. It's pretty much accepted that it authorizes the CDC to enforce quarantines. That's a very, obviously, I think most people would agree that that's a more extreme step in the interest of public health than eviction moratoriums. The law talks about, it specifically says that it authorizes the CDC to make and enforce such regulations as in its judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases. And that would be relevant here when it deals with

interstate possibilities of transmission of disease. And then it goes on to list some measures that could be instituted pursuant to that statutory authority. They talk about inspections, sanitation, destruction of property. And then it says, and other measures as in the Surgeon General's judgment may be necessary. It's a very broad statute. And the Supreme Court majority says that this does not include the eviction moratorium. Even though this moratorium is narrower and more targeted than the previous moratorium, this one only triggers when there's a high enough level of transmission and is really important now that we're seeing the Delta variant surge.

Fortunately here, because there was a decision actually, or I should say some reasoning put forth by the majority, there's an important dissent that is penned by Justice Breyer and joined by Justices Sotomayor and Kagan, who point out that first, the majority's reading restricting the administration's authority to issue this eviction moratorium is a bad reading of the statute, especially when you've got so-called textualists in these conservative justices who, you know, claim to be textualist when it comes to reading statutes, and then they give this bad reading of the statute. That's problem number one. But then

problem number two, which I think is important to remember, because we're still talking about the shadow docket, is that Justice Breyer says that even if you were eventually to get to this decision, it's wrong to do it now. And it's wrong to do it on the shadow docket. And, you know, I know that it can seem a little wonky, but the shadow docket deals with emergency rulings. And when we're talking about issues like this, we're talking about a very specific test that the courts should be applying on whether or not to stay government action like the eviction moratorium or like the Biden administration's decision on the MPP program. And those factors

include looking at whether there's a strong showing of a likelihood of success, and that's where you collapse the merits ruling into these decisions. But they also look at the balance of the equities. And what that means in real terms are the irreparable harms that would happen to the people challenging the policy. So in this eviction moratorium case, the landlords and their interests, as well as the harms to other people involved in the issue being adjudicated. So here clearly the individuals and families who could become unhoused as a result of the struggles they've faced through the COVID-19 pandemic and people who could be more likely to become sick with COVID-19 because of evictions that would result if the moratorium is lifted. And then finally, the last factor is the public interest. And so even if you were eventually on the merits going to decide that the Biden administration didn't have the statutory authority to give the eviction moratorium,

we're talking about whether you should on an emergency, extraordinary basis, stop that eviction moratorium from continuing. If you apply that test honestly, you cannot do that. And I was so happy that Justice Breyer brought out that aspect of the injustice here. Because if you look at the public health, if you look at the harms to the real people and families being affected, it isn't just likelihood of success on the merits. So even taking the majority at their reading of the statute,

it was wrong to do it on the shadow docket. I think their reading of the statute is wrong, but I think it's really important to point out the abuse of the shadow docket that we're seeing from these conservative justices, especially when not only does this harms legitimacy of the court, but it harms real people in real time. And this isn't just something that lawyers should be concerned about.

The abuse of the shadow docket, as we've seen from both the MPP program, from the eviction moratorium, from other rulings, has real impacts immediately on real people. I will confine myself to three points because we are running short on time, but I feel compelled to share these three points anyways, because this entire set of few weeks has just driven me bonkers. One is the court's textual analysis of the statute that Elizabeth quoted is basically bringing back the pre-New Deal Commerce Clause jurisprudence. Specifically, the court reads a statute to permit measures that, quote, directly relate to preventing the interstate spread of diseases like inspection or fumigation, but the moratorium, the court says, relates to interstate infection far more indirectly. And it's like, wow, that sounds

like a really administrable line that you're capable of applying in a totally principled fashion. Second is the court's textual analysis. That's basically it. It's a paragraph. The court then proceeds to invoke a ton of substantive values that it believes the moratorium sacrifices. And the court says explicitly, quote, even if the text were ambiguous, the scope of the CDC's claimed authority would counsel against the government's interpretation, basically, like, seems kind of iffy to us, like, let's just do this and be legends. You know, they say, this compromises federalism. This is a big decision with significant economic implications for landlords. This would give the agency unlimited power. The CDC hasn't exercised this authority before.

And it's like, okay, well, where were all of those reasonings when we were talking about the Trump administration's implementation of the MPP? Like you're talking about a new, right, first time exercise of expansive authority. And that's okay, sometimes, but not others. It just drives me nuts. And then in the balance of equities that Elizabeth was mentioning, the court suggests what is super bad about the moratorium is it interferes on the fundamental rights of landlords, and specifically the fundamental element of property ownership, the right to exclude, as if, again, that is the most important fundamental right here. And it's just, yeah, that's where they see the equities in this case.

And that right to exclude was basically made up in one of the worst decisions of last term that flew under the radar. And every time I talked to any reporter about the term, I'd always be like, you must pay attention to the Cedar Point takings case. And hardly anybody did. But this is why you should have because they gave this expansive rehaul of the understanding of takings, including this right to exclude people from your private property. And they are reviving that made up idea from Cedar Point last term. That was an important labor case as well, and using it to thwart the CDC's eviction moratorium. And Leah mentioned the revival of sort of, you know, pre New Deal Commerce Clause thinking this also feels not only like just sort of a sequel to last term's Cedar Point nursery case, but also revival of kind of Lochner era pre-New Deal substantive economic due process thinking. And we saw it on display not only in the CDC eviction moratorium case, but on another shadow docket case invalidating part of New York's state eviction moratorium,

also on the grounds that it was basically unfair to the economic interests of landlords. And that was another just kind of flyover shadow docket ruling that sort of made a hash of this state eviction moratorium. And I think it's just another data point for this sort of larger story that the shadow docket is eclipsing in many ways the merits docket and the court is making some pretty dramatic legal changes kind of undercover of night. I just also wanted to foreshadow that we may see very similar questions come up in another case in the next month or two. That is to do with a parallel provision to the CDC eviction moratorium, which is Title 42, USC 265. 264A is the provision that the CDC is using for the eviction moratorium, and 265 is what the Trump administration and now the

Biden administration have used to expel over 1 million people who are arriving at the southern border and seeking asylum or otherwise seeking to enter the United States. These Title 42 expulsions are unprecedented in American history. They are deportations without deportation orders, and the CDC and the DOJ have argued that they are fully within their power to expel U.S. citizens if they want to, and indeed even to expel unaccompanied children in violation of the Immigration and Nationality Act and in violation of the right to seek asylum. That is in front of a district court right now, and it may lead to the Biden administration being blocked from using 42

USC 265 for that. And that may itself get appealed really quickly up to the Supreme Court, which may step in and force and overrule the district court thing and force the Biden or allow the Biden administration to keep using Title 42 to expel people. It's going to be another issue that we're likely to see a district court decision blocking Biden from using Title 42 to expel thousands and thousands of families every month. And that will likely get appealed all the way up to the Supreme Court or maybe blocked by an appeals court, which would sort of obviate the issue. But I think we're going to see the Supreme Court's decision cited in that case, because effectively everything that they said about 264A applies to 2652, about the extreme overreach there and giving the CDC these unprecedented powers. So we should see this

developing. This is like the New York eviction moratorium. We're going to see this question of statutory interpretation and indeed this sort of broader issue of CDC power under these public health laws coming back to the Supreme Court likely sooner than you think. So that is all we have time for today. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. Thanks to Erin and Elizabeth for joining us. And thanks to all of you for listening. Thank you.