Justices Hold Title 42 to Remain in Place Pending Expedited Review

December 28, 2022 by Dan McCue
Justices Hold Title 42 to Remain in Place Pending Expedited Review
Migrants from Venezuela prepare for relocation to a refugee shelter in Matamoros, Mexico, Dec. 23, 2022. (AP Photo/Fernando Llano, File)

WASHINGTON —  A divided Supreme Court on Tuesday held that Title 42, the pandemic-era rule that restricted migration at the southwestern border on public health grounds, will remain in place pending an expedited ruling and future ruling by the justices.

In a brief, unsigned order, a majority of the justices stayed a trial court’s ruling that the Biden administration must lift the measure, and said the court would hear arguments in the case in its February sitting.

The majority went on to explain that the court’s review at that hearing will be limited to the question of intervention — in other words, on whether the 19 mainly Republican-led states that had sought the stay could pursue their challenge to the measure.

“While the underlying merits of the District Court’s summary judgment order are pertinent to that analysis, the court does not grant review of those merits, which have not yet been addressed by the Court of Appeals,” the order said.


Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Ketanji Brown Jackson dissented, arguing that this particular “case-specific decision is not of special importance in its own right and would not normally warrant expedited review.” 

“The D.C. Circuit’s intervention ruling takes on whatever salience it has only because of its presence in a larger underlying dispute about the Title 42 orders,” Gorsuch wrote. “And on that score, it is unclear what we might accomplish. 

“Even if at the end of it all we find that the states are permitted to intervene, and even if the states manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed,” he continued. 


“In April 2022, the federal government terminated the Title 42 orders after determining that emergency immigration restrictions were no longer necessary or appropriate to address COVID-19,” the dissent said. 

“The states may question whether the government followed the right administrative steps before issuing this decision (an issue on which I express no view). But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed,” Gorsuch added. “And 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.”

The real eye opener in the dissent comes at the end, when Gorsuch conceded he understands the concerns border states have about the end of Title 42 and the “disruptive consenquences” that may come of it.

That said, he wrote, “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. We are a court of law, not policymakers of last resort.”

In a statement from the White House, Press Secretary Karine Jean-Pierre said, “The Supreme Court’s order today keeps the current Title 42 policy in place while the court reviews the matter in 2023. We will, of course, comply with the order and prepare for the court’s review.

“At the same time, we are advancing our preparations to manage the border in a secure, orderly and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration,” Jean-Pierre continued. “Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.  


“To truly fix our broken immigration system, we need Congress to pass comprehensive immigration reform measures like the ones President Biden proposed on his first day in office,” she added. “Today’s order gives Republicans in Congress plenty of time to move past political finger-pointing and join their Democratic colleagues in solving the challenge at our border by passing the comprehensive reform measures and delivering the additional funds for border security that President Biden has requested.”

Dan can be reached at [email protected] and @DanMcCue

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