Gorsuch slams pandemic emergency power as intrusion on civil liberties

Conservative Justice Neil Gorsuch on Thursday slammed the use of emergency power during the pandemic as a mass intrusion on civil liberties.

The high court on Thursday dismissed as moot a case seeking to preserve Title 42 after the pandemic emergency expired last week. The public health authority had allowed for the swift expulsion of migrants without allowing them to seek asylum.

Gorsuch, in an attached statement to the court’s unsigned order, more broadly railed against the use of emergency powers since COVID-19 shut down normal life, referencing among other things, lockdown orders, a federal ban on evictions and vaccine mandates.

“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,” Gorsuch wrote.

The conservative justice throughout the pandemic has been a skeptic of how officials leveraged laws that grant additional executive authority during emergencies, often lamenting that COVID-19 was being used as merely a pretext.

“And 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,” Gorsuch wrote of those laws.

“It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level,” he continued. “At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another.”

Gorsuch’s statement did not officially indicate his vote in the Title 42 case, but he wrote that its “dismissal goes some way to correcting that error.”

After a federal district judge struck down the policy, a group of GOP-led states appealed to the justices in their bid to intervene in the case to defend Title 42.

The Supreme Court late last year issued an order allowing Title 42 to stay in effect as they considered the Republican states’ bid. Gorsuch joined the court’s three liberals in dissent, writing that “the current border crisis is not a COVID crisis.”