Gorsuch Condemns the ‘Breathtaking’ Use of Emergency Powers During Covid By Jeff Zymeri
Justice Neil Gorsuch has penned a passionate polemic against the emergency powers that were widely used during the Covid-19 pandemic, saying that while they may have solved some problems, they created many others.
Gorsuch’s statement came in the Supreme Court’s final word on the effort of a group of states to challenge the end of Title 42, which allowed migrants to be expelled on public-health grounds. Last December, the conservative justices blocked the administration from lifting Title 42 and scheduled oral arguments. However, the justices removed the case from the argument calendar in February after the Biden administration announced it planned to end the Covid-19 national emergency. The justices closed the book on the case Thursday, days after Title 42 expired.
Gorsuch dissented in December and was relieved at the Supreme Court’s decision to render the case moot. He wrote that he does not discount the concerns of states like Arizona, a party in the case, about what is happening at the border. However, he said, “the current border crisis is not a COVID crisis.”
According to Gorsuch, the states attempted “to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one,” adding that the Court took a serious misstep in granting certiorari in December.
But for the justice, Title 42 was only one part of a much larger problem of emergency powers being misused.
“Since March 2020, we 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,” wrote Gorsuch, recounting the lockdowns, the closure and surveillance of churches, and the shuttering of schools.
Gorsuch pointed to the many excesses at the federal level: a public-health agency being deployed to regulate landlord-tenant relations nationwide and a workplace-safety agency issuing a vaccination mandate for most working Americans. “Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed,” wrote Gorsuch.
“While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress—the bodies normally responsible for adopting our laws—too often fell silent. Courts bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them. 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,” Gorsuch added.
Fear and the desire for safety are powerful motivators, wrote Gorsuch. “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,” the justice asserted.
This leads to the loss of many cherished civil liberties, he said, adding: “Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.”
The justice noted that Congress understood the tendency of emergency orders to outlive the crises that generate them and adopted guardrails when it passed the National Emergencies Act in 1976. However, despite this, the number of declared emergencies has only grown.
“It is hard not to wonder whether, after nearly a half century and in light of our Nation’s recent experience, another look is warranted,” said Gorsuch, who also wondered whether state legislatures might reexamine the scope of emergency executive powers at the state level.
“At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem,” wrote Gorsuch. “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.”
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