For too long, Congress has fallen in love with the idea of kicking difficult issues to the White House or the courts. It’s easier to demonize the other party or blame judges for a problem than it is to craft a solution — especially when the subject is immigration.
So it was refreshing this week to have a conservative Supreme Court justice, Neil Gorsuch, state the obvious.
“We are a court of law, not policymakers of last resort,” he said, dissenting to a narrow majority of fellow conservative justices who decided to let Title 42 stay in place temporarily while several Republican-led states mount a challenge to keep it as a permanent fixture.
Title 42 was created during the Trump administration to keep asylum-seekers from crossing the border because of the threat of COVID-19. That threat has passed — or at least it isn’t as significant as it once was.
As Gorsuch said in his dissent, “... the emergency on which those orders were promised has long since lapsed.”
This may be an unpopular opinion, as it turns out. A poll by Politico and Harvard University last May found that 55% of Americans want to keep Title 42, COVID-19 or no COVID-19, because it’s a good way to control immigration.
Which is another way of saying Congress has failed. It hasn’t come up with a better, more orderly and fair way to handle immigration from the south, despite lots of opportunities stretching back at least to the George W. Bush administration.
Congress couldn’t even come up with a way for the children of undocumented parents, who were brought here through no fault of their own, to receive legal status. These so-called “Dreamers” enjoy much higher support from Americans. One poll by Pew Research Center found about three-fourths in favor of granting them legal status.
And yet lawmakers have fumbled this away. Their failure led President Barack Obama to impose a program for these children through executive order, which was briefly overturned by President Donald Trump before the Supreme Court intervened.
That’s the pattern of congressional inaction — let presidents issue executive orders that get challenged in court. If Congress would do as the Founding Fathers intended — struggle to negotiate and do the hard work of passing difficult laws — the nation could have a solution in place by now. Title 42 might be meaningless and border surges might be handled in an orderly manner.
“During the past two years, a multitude of options were available — some sweeping, some specific,” University of Southern California journalism professor Roberto Suro wrote last week for The Washington Post.
He added, “Immigration is not in search of unknown cures. Yet nothing was done about the major maladies. That’s a bad outcome in ordinary times; it is a disaster when an immigration system, in crisis for more than a decade, is now imploding.”
For some reason, Americans seem happy to accept refugees from war-torn Ukraine and, to a lesser extent, Afghanistan. But refugees from troubled countries such as Venezuela are considered nuisances, at best.
As I noted several months ago, Ukrainian refugees who decided to enter the United States through Mexico found themselves thrown into detention cells and treated roughly, which is how the nation routinely treats those who enter from the south.
And yes, it is unfair to ignore the burden that the lack of an effective immigration system imposes on a handful of border states who end up with a disproportionate share of the problem. A reasonable solution could help this, spreading asylum-seekers among each state.
In the meantime, as Gorsuch said in his dissent, “the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”
It’s time to stop the legal shenanigans. We elect lawmakers to deal with difficult issues. Get on with it already.