The Supreme Court halted the termination of Title 42 as legal challenges continued. The vote was 5-4.
Title 42 has been in place since 2020. It allowed authorities to expel migrants due to the pandemic.
We’ve seen an increase in migrants every month since Biden took office in January 2021. We’ve also seen migrants camp out at the border, anticipating Title 42 going away.
In November, Judge Emmet Sullivan of the U.S. District Court in Washington, DC, ruled the American government cannot use Title 42 to expel migrants based on public health. Sullivan agreed with the Plaintiffs that Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.”
Chief Justice John Roberts issued a stay on Title 42 just before Christmas.
Like Roberts’ stay, this decision is NOT based on the merits. The states wanting to keep Title 42 in place will argue on the merits in February 2023:
This stay precludes giving effect to the District Court order setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy. The Court’s review on certiorari is limited to the question of intervention. 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 Clerk is directed to establish a briefing schedule that will allow the case to be argued in the February 2023 argument session. The stay shall terminate upon the sending down of the judgment of this Court. The order heretofore entered by THE CHIEF JUSTICE is vacated.
Justices Sotomayer and Kagen voted to deny but did not issue an opinion.
Justices Jackson and Gorsuch also voted to deny the application, with the latter writing:
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 don’t know, sir. The way everyone acts we’re still in a COVID pandemic!
There is a border crisis, but no one in this administration is doing anything about it.
Maybe the Democrat-controlled White House and Congress should have done something in the past two years. Just saying!
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