On December 19, 2022, Supreme Court Chief Justice John Roberts ordered Title 42, which allows the immediate expulsion of many migrants because of COVID-19 concerns, to temporarily remain in effect to allow the full Supreme Court time to consider the issue. On December 27, 2022, the Supreme Court extended Title 42. The Court plans to consider in late February 2023 whether the 19 states objecting to Title 42’s termination have legal standing to do so.
The Court’s December 27 opinion noted that its review on certiorari “is limited to the question of intervention. While the underlying merits of the District Court’s summary judgment order [terminating Title 42] 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 court’s three liberal justices objected, as did Justice Neil Gorsuch, who wrote, “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.”
Karine Jean-Pierre, the White House press secretary, said that although the Biden administration will comply with the Supreme Court’s action, “Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.”
- “Supreme Court Says Trump-Era Border Restriction Will Remain in Effect While Legal Challenges Play Out,” CNN, Dec. 27, 2022
- “Supreme Court Leaves in Place Title 42 Border Policy for Now,” Washington Post, Dec. 27, 2022 (subscription required)
- Arizona v. Mayorkas, order issued Dec. 27, 2022
- Arizona v. Mayorkas, order issued Dec. 19, 2022