Supreme Court Justice Neil Gorsuch used a statement in a lawsuit over the Title 42 public health order to give a scathing overview of how civil liberties were trampled during the COVID-era — and the lessons that America could learn from it.
“One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action—almost any action—as long as someone does something to address a perceived threat,” the justice wrote.
“A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force. We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree.
Gorsuch was writing as the justices dismissed a pending appeal over the ending of the Title 42 public health order — which was used between March 2020 and May this year to expel migrants quickly at the southern border. It ended along with the expiration of the COVID-19 national emergency.
The Biden administration had sought to end the order in 2022 but was blocked after an appeal from Republican states. It then faced an ACLU lawsuit, from which a court ordered that Title 42 be ended in December. But the Supreme Court accepted a request for a stay by 19 Republican states, who argued that the state could intervene to challenge the summary judgment order. The court was expected to rule in its own terms, but that has been abandoned after the order’s expiration on its own terms.
While Gorsuch focused on the legal back-and-forth over that had followed Title 42, he then turned his attention to the response to the pandemic as a whole, writing that the case “illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.”
He then gave examples of how the U.S. may “have experienced the greatest intrusions on civil liberties in the peacetime history of this country.”
“Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions too. They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct. They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent,” he said.
At the federal level, he highlighted not only immigration decrees but vaccine mandates, the regulation of landlord-tenant relations and pressure on social media companies to suppress “misinformation.”
He then even turned the spotlight on the courts: “In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.”
He said that another lesson from the pandemic is: “The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government.”
He argued that decisions made through the legislative process are typically wiser than “decisions announced on the fly” and made by a few. He also suggested that officials at the state level reexamine the scope of emergency powers.
“Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow,” he said.
Meanwhile, the end of Title 42 brought with it concerns of a new flood of migrants into the U.S. Though numbers spiked up to 10,000 a day in the days preceding the order’s expiration, since then they have dropped — with officials saying recent days have seen between 3,000 and 4,000 encounters a day.
Fox News’ Shannon Bream and Bill Mears contributed to this report.