Patterico's Pontifications


Supreme Court: Title 42 Remain In Effect At Least Until Oral Arguments Heard

Filed under: General — Dana @ 10:46 am

[guest post by Dana]

From Bloomberg Law:

The US Supreme Court ordered pandemic-era border restrictions to remain in effect, granting a request by Republican state officials who said lifting the rules would have produced an unmanageable surge of migrants.

Voting 5-4, the justices blocked a lower court decision that was set to invalidate the so-called Title 42 rule. The justices also said they will hear arguments in late February or early March on the states’ bid to intervene in defense of the policy…

The order extends a temporary pause Chief Justice John Roberts imposed, keeping the border policy in place while the Supreme Court considers the intervention issue. The court said it won’t be directly considering whether the Title 42 rule is lawful.

The court also indicated the Biden administration could continue its effort to repeal the policy, a push that is at the center of a separate legal fight. A federal trial judge has blocked that effort, and the case is now before a different appeals court.

Judge Gorsuch joined the court’s three liberals in dissent. He opined:

Reasonable minds can disagree about the merits of the D. C. Circuit’s intervention ruling. But that 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. 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. 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. 87 Fed. Reg. 19944. 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. 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 only plausible reason for stepping in at this stage that I can discern has to do with the States’ second request. The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. The only means left to mitigate the crisis, the States suggest, is an order from this Court directing the federal government to continue its COVID-era Title 42 policies as long as possible—at the very least during the pendency of our review. Today, the Court supplies just such an order. For my part, I do not discount the States’ concerns. Even the federal government acknowledges “that the end of the Title 42 orders will likely have disruptive consequences.” Brief in Opposition for Federal Respondents 6. 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.

I believe that Gorsuch is correct. The Supreme Court is not meant to be in the business of policymaking for either side of the political aisle, and we shouldn’t expect or want it to be. Even if lifting Title 42 complicates the situation at the Southern border (which it likely will), a policy put in place specifically because of the Covid-19 emergency, which has now run its course, makes it clear that Title 42 is not the vehicle to use to gain control of the border. For better or worse, control of that remains the responsibility of this administration and lawmakers.


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