Supreme Court temporarily extends Title 42 order, will hear arguments next year on state intervention

President Joe Biden’s administration has for some time now sought to end the Trump-era Title 42 public health order that allows for the immediate expulsion of migrants at the border, and seemed on the verge of finally doing so following a recent favorable district court ruling that the Title 42 order itself was unlawful.

However, on appeal from 19 states seeking to intervene in that case, the Supreme Court has now ruled to temporarily block the district court’s order pending a hearing next year, the Conservative Brief reported.

That means that the Title 42 public health order will remain in effect for the time being.

Title 42 policy temporarily extended

SCOTUSblog reported that it was in November when D.C. District Judge Emmett Sullivan ruled that the Title 42 policy was unlawful and ordered the Biden administration to fully end the policy no later than December 21.

A group of 19 Republican-led states sought to intervene and, after being initially denied by the D.C. appeals court, petitioned the Supreme Court to consider allowing the intervention to defend the challenged policy.

Then, just prior to Sullivan’s expiration date, Chief Justice John Roberts issued a temporary stay while the Supreme Court decided whether or not to take up the case.

Court will hear arguments next year

Now, in an unsigned order from the Supreme Court, it was announced that the states’ petition to be heard had been granted, and all parties involved were directed to prepare briefs limited to address only the following question: “Whether the State applicants may intervene to challenge the District Court’s summary judgment order.”

The order then set an expedited date for oral arguments for the February-March session and imposed a new stay to block Judge Sullivan’s order until after a ruling was issued following those arguments next year.

SCOTUSblog noted that the court was split 5-4 on the matter, as Justices Elena Kagen and Sonia Sotomayor indicated that they would have denied the states’ application while Justice Ketanji Brown Jackson joined a somewhat surprising dissent authored by Justice Neil Gorsuch.

Gorsuch in dissent

Gorsuch argued that it was “unwise” for the Supreme Court to grant expedited review to the states as well as to indefinitely prolong the Title 42 policy which, for whatever merits it may once have had, no longer retained its initial basis of protecting the U.S. population from migrants potentially carrying infectious diseases like COVID-19.

He further noted that it was unclear what any of this “might accomplish,” as even if the states were allowed to intervene and successfully proved that Title 42 was lawful, “the emergency on which those orders were premised has long since lapsed.” Further, the states themselves “do not seriously dispute” that COVID is no longer an issue, thus “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.”

Gorsuch concluded that the “only plausible reason” for the states’ efforts was to retain Title 42 for its ancillary impact on immigration in light of the fact that the administration and Congress have failed to address that issue. “But 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.”

White House says it will comply with court’s order

For what it is worth, the White House said in a statement on Tuesday, “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,” the statement added while also urging Congress to take action on “comprehensive immigration reform” legislation.

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