Title 42: Supreme Court Leaves Safeguard in Place For Now

The Supreme Court is set to hear arguments regarding whether states can request courts to preserve Title 42 border safeguards when President Joe Biden’s administration attempts to let the policy die. The court voted on Tuesday to leave the Trump-era policy in place until makes a case decision by early summer 2023.

Title 42 enables federal authorities to detain illegal aliens without putting them into custody if the agent suspects the alien has Covid-19. Even while the number of unlawful crossings is at an all-time high, without that approach, the numbers at the border would more than treble.

Homeland Security Secretary Alejandro Mayorkas has advocated for an end to the border control program, but the Biden administration has not gone through the legal procedure to repeal the CDC legislation. Instead, when left-wing groups filed a lawsuit to stop the program, Attorney General Merrick Garland opted not to appeal a lower court finding against the policy, thereby eliminating Title 42.

However, 19 states filed a motion to intervene in the lawsuit, requesting that the courts allow them to step into the shoes of the Biden administration to defend the program and to stay a federal trial judge’s judgment deeming Title 42 invalid.

Chief Justice John Roberts asked the Supreme Court to vote on the subject. The justices voted 5-4 on Tuesday to approve the stay. The judges also agreed to have a hearing on the matter by the end of February.

The Supreme Court will only consider whether the 19 states have the standing to intervene in court to defend the policy. If the states do not agree, the case will be returned to Washington, D.C. The states may file an appeal with the Circuit Appeals Court. If they do not, Title 42 will be repealed.

Justices Sonia Sotomayor and Elena Kagan voted to deny the stay. Justice Neil Gorsuch, chosen by previous President Trump, joined Justice Ketanji Brown Jackson in opposing sending the case up for review.

Gorsuch disagreed on grounds that many Republicans would agree with, noting that Title 42 is predicated on the Covid-19 public health emergency, saying that “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.”

“And courts should not be in the business of perpetuating administrative edits designed for one emergency only because elected officials have failed to address a different emergency,” Gorsuch went on to say. “We are a court of law, not policymakers of last resort.”

The case is Arizona v. Mayorkas, No. 22-592 in the Supreme Court of the United States.

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