An emergency application pending before the Court raises the intersection of immigration, COVID, and newfound state efforts to control federal policymaking
I would think this Title 42 is simply resolved a posteroi by the evidence. The evidence being, the percentage of immigrants with COVID-19 vs the average of the US population. If not substantially greater, wouldn't that show that immigrants were (or were not) no greater pandemic threat than already existed?
I hesitate to think that the comparison of the percentage of immigrants with COVID to the average of the US population is strictly sufficient. I think that validity would need to rest on at least a couple of other considerations. First, do the immigrants with COVID, once admitted, circulate freely and uniformly among the average US population, whatever that might be? Second, do the immigrants with COVID have access to the same kinds of healthcare for COVID that the average US population does?
To the first, absent any current data relevant specially to the COVID situation, I believe that historical study would lead one to think that immigrants would tend to initially land among established communities of similar ethnicities.
To the second, we do have data showing COVID care was not evenly accessible among the customary population categorizations as evidenced by differences in COVID rates that were collected (NOT saying data collection among states was the same throughout at all); e.g., whites compared to people of color (which colors?); urban compared to rural; wealthy compared to middle-class compared to working-class; “essential” compared to non-essential; and a whole lot more “so-ons.”
AND, who gets to decide what considerations are permitted to bear? Who holds the authority to make those decisions? Who has responsibility to carry out those decisions? What processes will be used and what powers and constraints will be applied?
I submit that Democrats, Republicans and Independents all have different answers to those questions. Simple answer: the majority! BUT which majority; the Big Lie majority (BTW, does not exist!), the Majority in the Senate or the House or combined (the latter being unattainable), whoever can raise the most $ from the most gullible?
AND LAST BUT NOT LEAST, who pays for it? That one’s easy: us little guy working stiffs.
Though this question is not about the fascinating procedural issues, I do have one question about Section 365 itself. It isn't just about stopping people from spreading a disease. It is about the INTRODUCTION of a disease into the US. See first sentence of Section 365. By the time it was invoked by the trump administration, that horse had left the barn. It was already introduced, and not by anyone at the Southern border. The first US case was on January 15, 2020. It was a returning traveler from China. The trump CDC order went into effect on March 15. The US cases had broken 1000 by March 10 and by March 15 had hit 4000. It was clearly going wild without the help of border crossers (its main manifestation was in New York.) By the 17th there were over 6000 cases and by March 19, 4 days after the CDC invocation, was at 13,000 cases and three days after that 46,438. The rest is history.
As far as I know there was no particular spread from the border area, much less origin. And keeping migrants in Mexico certainly did nothing to stop the spread, much less stop the introduction of it.
The best one can say about trump's use of title 42 is that under the rationale under the statute is that it was an abject and utter failure.
Susan: I certainly agree on the facts. The messier question is whether a policy that's likely to be ineffective is therefore arbitrary and capricious in violation of the APA. My own view is that I'd rather give the government a little bit of leeway in the early moments of a public health emergency, but that obviously should have disappeared long before the Biden administration's actions here.
I guess I could give leeway for a bit, but if Covid was spreading despite the policy, it rather suggests that it wasn't immigrants spreading it. So the REALLY interesting question is whether a rule that wasn't arbitrary and capricious when instigated can BECOME so because the passage of time makes enforcement of it arbitrary and capricious.
Did the original use of Title 42 go through the rule-making process. If enforcing it didn't, why should cancelling it?
It will be interesting to see what SCOTUS does. Is Biden making any efforts to PUT the cancellation through the notice and comment process? If he succeeds, will the Court just rule this moot? If they don't we'll just have more evidence of a court which actually ignores the law.
I would think this Title 42 is simply resolved a posteroi by the evidence. The evidence being, the percentage of immigrants with COVID-19 vs the average of the US population. If not substantially greater, wouldn't that show that immigrants were (or were not) no greater pandemic threat than already existed?
I hesitate to think that the comparison of the percentage of immigrants with COVID to the average of the US population is strictly sufficient. I think that validity would need to rest on at least a couple of other considerations. First, do the immigrants with COVID, once admitted, circulate freely and uniformly among the average US population, whatever that might be? Second, do the immigrants with COVID have access to the same kinds of healthcare for COVID that the average US population does?
To the first, absent any current data relevant specially to the COVID situation, I believe that historical study would lead one to think that immigrants would tend to initially land among established communities of similar ethnicities.
To the second, we do have data showing COVID care was not evenly accessible among the customary population categorizations as evidenced by differences in COVID rates that were collected (NOT saying data collection among states was the same throughout at all); e.g., whites compared to people of color (which colors?); urban compared to rural; wealthy compared to middle-class compared to working-class; “essential” compared to non-essential; and a whole lot more “so-ons.”
AND, who gets to decide what considerations are permitted to bear? Who holds the authority to make those decisions? Who has responsibility to carry out those decisions? What processes will be used and what powers and constraints will be applied?
I submit that Democrats, Republicans and Independents all have different answers to those questions. Simple answer: the majority! BUT which majority; the Big Lie majority (BTW, does not exist!), the Majority in the Senate or the House or combined (the latter being unattainable), whoever can raise the most $ from the most gullible?
AND LAST BUT NOT LEAST, who pays for it? That one’s easy: us little guy working stiffs.
Though this question is not about the fascinating procedural issues, I do have one question about Section 365 itself. It isn't just about stopping people from spreading a disease. It is about the INTRODUCTION of a disease into the US. See first sentence of Section 365. By the time it was invoked by the trump administration, that horse had left the barn. It was already introduced, and not by anyone at the Southern border. The first US case was on January 15, 2020. It was a returning traveler from China. The trump CDC order went into effect on March 15. The US cases had broken 1000 by March 10 and by March 15 had hit 4000. It was clearly going wild without the help of border crossers (its main manifestation was in New York.) By the 17th there were over 6000 cases and by March 19, 4 days after the CDC invocation, was at 13,000 cases and three days after that 46,438. The rest is history.
As far as I know there was no particular spread from the border area, much less origin. And keeping migrants in Mexico certainly did nothing to stop the spread, much less stop the introduction of it.
The best one can say about trump's use of title 42 is that under the rationale under the statute is that it was an abject and utter failure.
Any thoughts on this problem?
Susan: I certainly agree on the facts. The messier question is whether a policy that's likely to be ineffective is therefore arbitrary and capricious in violation of the APA. My own view is that I'd rather give the government a little bit of leeway in the early moments of a public health emergency, but that obviously should have disappeared long before the Biden administration's actions here.
I guess I could give leeway for a bit, but if Covid was spreading despite the policy, it rather suggests that it wasn't immigrants spreading it. So the REALLY interesting question is whether a rule that wasn't arbitrary and capricious when instigated can BECOME so because the passage of time makes enforcement of it arbitrary and capricious.
Did the original use of Title 42 go through the rule-making process. If enforcing it didn't, why should cancelling it?
It will be interesting to see what SCOTUS does. Is Biden making any efforts to PUT the cancellation through the notice and comment process? If he succeeds, will the Court just rule this moot? If they don't we'll just have more evidence of a court which actually ignores the law.