Supreme Court Leaves Title 42 in Place Temporarily, Pending Its Decision to Allow States to Appeal a Federal Court Ruling and Protect the Policy


    The Supreme Court of the United States (SCOTUS) will hear arguments about whether states may seek to have courts preserve Title 42 border safeguards when the Biden administration allows the policy to die. The court voted on Tuesday to preserve the policy enacted by the Trump administration until it issues a decision in the summer of 2023.

    Title 42 allows federal agents to turn away illegal immigrants immediately, without taking them into custody, if they suspect that the person may have COVID-19. Even though the number of illegal border crossings has reached an all-time high, that number could more than double without this policy.

    With President Joe Biden's unambiguous backing, Homeland Security Secretary Alejandro Mayorkas has called for an end to the border-control policy; however, the Biden administration hasn't gone through the legal process to end this CDC measure. Instead, when leftist groups filed a lawsuit to terminate the program, Attorney General Merrick Garland decided against appealing a lower court's decision against the policy, which would have resulted in the revocation of Title 42.

    However, 19 states submitted a motion for intervention in the dispute and asked for the courts to allow them to take on the role of the Biden administration in order to protect the policy and declare a stay of the federal trial judge’s decision that declared Title 42 unlawful.

    Chief Justice John Roberts referred the matter to the entire Supreme Court for a vote. The justices on Tuesday made a decision to stay the decision by a 5-4 vote. The justices also voted to hear the case and review it, setting the case for argument by the end of February 2023.

    The only issue that the Supreme Court will decide is whether the 19 states have the right to bring an action in court in order to defend the authority. If the states do, then the case will be referred to the D.C. Circuit appeals court to allow the states to pursue appeals. If they fail to do so, then Title 42 will end.

    Justices Sonia Sotomayor and Elena Kagan voted against the stay. Justice Neil Gorsuch, appointed by former President Donald Trump, did not agree to take up the case for review, joined by Biden-appointed Justice Ketanji Brown Jackson.

    Gorsuch disagreed based on a point that would resonate with a lot of Republicans, however. He noted in his contention that Title 42 is based on the COVID-19 public-health crisis and asserted that “it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life.

    “And courts should not be in the business of perpetuating administrative edits designed for one emergency only because elected officials have failed to address a different emergency,” Gorsuch said. “We are a court of law, not policymakers of last resort.”

    The case being reviewed by the Supreme Court of the United States is Arizona v. Mayorkas, No. 22-592.


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