Monday, May 15, 2023

BACK AGAIN: U.S. Supreme Court Forced To Reconsider Arizona's Mystery Title 42 Case

When last we checked in with the status of Arizona v. Mayorkas, a former Arizona Deputy Solicitor General was ready to argue the Title 42-related case in front of the U.S. Supreme Court when the justices  mysteriously* yanked the Title 42-related case from its calendar just one week's notice. The case has been in a judicial purgatory for the past two months.

Now, with Title 42 in the immigration enforcement dustbin, the U.S. Department of Justice is now trying to send the case to the judicial dustbin. 

Not so fast, the Arizona-now-Louisiana Deputy AG tells Arizona's Law. Drew Ensign will tell the Court that the case should go on, noting that it is important for future, similar situations, and that DOJ is directly contradicting what they argued to the Supreme Court last year.

Confused? We do not blame you. Here is our most recent article: "MYSTERIES (MOSTLY) RESOLVED: Fmr AZAG Deputy Solicitor General Ready To Argue "Arizona v. Mayorkas" Title 42 Case In Front Of U.S. Supreme Court... For Louisiana"

The origin of this case makes it all the more confusing: Arizona - under previous AG Mark Brnovich - and the other states - were attempting to INTERVENE in a case brought by private entities to force the Biden Administration to leave the pandemic-era Title 42 immigration restrictions in place. It is the lower courts' refusal to allow the states to intervene that is before the Supreme Court.

In a letter to the Court (published) today, the U.S. argued that the case is now, indeed, moot and that the lower courts are waiting for the highest court to dismiss. That letter is below.

Since Arizona attorney Ensign is now retained by Louisiana's Attorney General to handle this case on behalf of the states, Arizona's Law asked for their position. Ensign states that they intend to oppose the DOJ by the end of the week. He addressed the mootness issue with the Court back in February, and the DOJ's "letter notably makes no attempt to engage with those arguments or explain why the voluntary cessation and capable-of-repetition/yet-evading-review exceptions do not apply in this case."

In other words, it is similar to many pregnancy and abortion cases; even if the woman involved in the case is no longer pregnant, the court should hear the case because the same situation will continue to recur and evade the court's review. Here, future temporary federal orders could be issued and expire before the legal issues are resolved.

We will continue to follow this unusual case. It will not evade our review and reporting.

Arizona's Law is also monitoring the Supreme Court for decisions in two other Arizona-related cases: Arizona v Navajo Nation (water rights) and Jack Daniel's v VIP (parody products)

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

* The Court gave no explanation why it was vacating the argument or what would then happen to the case.

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