Is Arizona v. United States a Mayor’s case?

A Supreme Court hearing has been scheduled Arizona v. Mayor March 1. The question before the Court is whether states may intervene to defend the maintenance of Title 42 policies that bar entry to certain noncitizens who enter the country through Canada or Mexico. The Biden administration sought to overturn the policy, and the District Court in DC ruled that the use of Title 42 to restrict entry into the country was illegal. Arizona v. Mayor stems from efforts by some states to defend the Title 42 order and challenge this decision. A separate challenge to the Biden administration’s decision to overturn the order is currently pending in the U.S. Court of Appeals for the Fifth Circuit.

Yesterday, the Biden administration submitted its own merits brief in Arizona v. Mayor, in which the attorney general suggests that the case will become moot before it is decided because the Biden administration has announced that the state of emergency related to COVID-19 will end in May. From the summary:

Since this Court issued certiorari, Congress has considered legislation that would immediately end the current public health emergency. In response, the government announced for the first time its intention to allow the state of emergency to expire on May 11, 2023. In the absence of other relevant events, the end of the public health emergency will (among other consequences) repeal the provisions of Title 42 and discuss this case. The government also recently announced its intention to adopt new Title 8 policies to address the border situation after Title 42 orders expire. . . .

The expected end of the public health emergency on May 11, and the resulting expiration of the Title 42 operational order, would render this case moot: Because the Title 42 order would ” ‘expire on its own terms,’ ” this lawsuit seeks only anticipatory relief no longer either[] ‘living case or controversy’.” Trump against international aid to refugees, 138 S. Ct. 353, 353 (2017) (citation omitted) (cit Burke v. Barnes, 479 US 361, 363 (1987)). In that case, the government will ask the appellate court to vacate the district court’s judgment and remand with instructions to dismiss the private respondent’s lawsuit as moot. See United States v. Munsingwear, 340 US 36, 39 (1950). And because consideration of the underlying case would also call into question plaintiffs’ attempt to intervene, it would also be appropriate for this court to resolve the intervening dispute by reversing the appellate court’s order denying intervention and remanding with instructions to dismiss plaintiffs’ motion as moot

If the Court wants to further reduce its already reduced case list – perhaps to have more time to issue some more opinions – this would provide it with such an opportunity.

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