Supreme Court keeps Title 42 in place while legal challenges play out

The Supreme Court blocked a lower court order Tuesday ending the Trump-era Title 42 health policy — setting up a complex legal battle that could take several months to resolve.

The court’s unsigned order extended a stay put in place by Chief Justice John Roberts last week and ordered time carved out this spring to hear the case brought by 19 Republican-led states.

The issue that will come before the high court is a technical one: Whether the states had the right to intervene in a lawsuit brought by the American Civil Liberties Union and other organizations against the Biden administration on behalf of migrants.

In response to that lawsuit, Senior US District Judge Emmet Sullivan last month ordered Title 42 — which allows the summary expulsion of migrants on public health grounds without first hearing their asylum claims — ended on Dec. 21.

The states argue that they should be able to step in on the grounds that the Biden administration abandoned its defense of the policy. In a filing last week, the Justice Department argued that Title 42 had “outlived its public-health justification.”

Departing the White House for a year-end vacation to the US Virgin Islands, Biden told reporters: “The court is not going to decide until June apparently, and in the meantime we have to enforce it, but I think it’s overdue [to be removed].”

“The Supreme Court’s order today keeps the current Title 42 policy in place while the Court reviews the matter in 2023,” White House press secretary Karine Jean-Pierre said in an earlier statement. “We will, of course, comply with the order and prepare for the Court’s review.”

However, Jean-Pierre added, “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.

“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,” the press secretary concluded.

In a separate case, a spawn a surge of migrants that would overwhelm immigration resources. The administration is appealing that ruling to the New Orleans-based Fifth Circuit Court of Appeals and the case is still pending.

Title 42, which was instituted in March 2020 by the Centers for Disease Control and Prevention, has been used to turn away almost 2.5 million migrants due to concerns over COVID-19.

The ban has been unevenly enforced by nationality, falling largely on migrants from Guatemala, Honduras, El Salvador — as well as Mexicans — because Mexico allows them to be returned from the United States. Last month, Mexico began accepting Venezuelans who are expelled from the United States under Title 42, causing a sharp drop in Venezuelans seeking asylum at the US border.

The asylum rule has been used by the Biden administration to expel migrant families and single adults, though not children traveling alone.

In a two-page dissent, Justice Neil Gorsuch wrote that the stay was “unwise” and argued the administration should be allowed to end the policy.

“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,” wrote Gorsuch, who was joined in his dissent by Justice Ketanji Brown Jackson.

“[T]he current border crisis is not a COVID crisis,” Gorsuch went on. “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.”

Justices Sonia Sotomayor and Elena Kagan also indicated they would have denied the states’ request for a further stay, though neither signed on to Gorsuch’s dissent.

With Post wires