Supreme Court Orders Title 42 Border Rule to Remain in Effect

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The Supreme Court on Tuesday allowed Title 42, the Trump-era immigration and public health order, to remain in place for the time being.

The high court voted (pdf) 5–4 to grant an emergency request from 19 Republican state attorneys general who sought to intervene in defense of the rule, putting on hold a ruling by District of Colombia Judge Emmet Sullivan, a Clinton appointee, that allowed the rule to expire last week.

Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson voted against granting the request, while Justices John Roberts, Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett voted in favor. Last week, Roberts, the chief justice, paused the plan to give the Supreme Court more time to look into the issue.

“The stay itself does not prevent the federal government from taking any action with respect to that policy,” the short, unsigned order said Tuesday. “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.”

A two-page dissent, written by Gorsuch, stated that the District of Columbia Court’s “intervention ruling takes on whatever salience it has only because of its presence in a larger underlying dispute about the Title 42 orders,” adding that it is “unclear what we might accomplish.”

The 19 states had argued that lifting the policy could lead to an increase in already-record border crossings. Texas Gov. Greg Abbott, meanwhile, pleaded with the Supreme Court and other courts to keep the rule intact, warning that it would lead to a surge in illegal immigration.

The Title 42 order was first implemented in March 2020 under former President Donald Trump at the beginning of the COVID-19 pandemic. President Joe Biden kept the restrictions in place for more than a year after taking office in 2021 despite promising to shift away from immigration policies adopted by Trump.

By Jack Phillips

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