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The U.S. Supreme Court ruled yesterday that the Biden administration can not end Title 42, a pandemic-era policy that allows border officials to quickly expel migrants and asylum-seekers on public health grounds.

Background

Title 42 is part of the Public Health Service Act of 1944 and gives the CDC the power to prevent entry to the United States to protect public health. Former president Trump’s administration implemented Title 42 in March 2020 during the start of the Covid-19 pandemic. Trump advisor and white nationalist Stephen Miller played a key role in enacting the policy, first pushing for its use during a mumps outbreak in 2019.

One official said the ideas about invoking public health and other emergency powers had been on a “wish list” of about 50 ideas to curtail immigration that Mr. Miller crafted within the first six months of the administration.

He had come up with the proposals, the official said, by poring through not just existing immigration laws, but the entire federal code to look for provisions that would allow the president to halt the flow of migrants into the United States…He and others in the administration frequently talked about migrants as potential vectors of disease, they said. Mr. Miller cited historical precedent for invoking the president’s public health powers, pointing out that many immigrants were refused entry at Ellis Island in the late 19th century amid concerns that contagious diseases could be brought in to overcrowded cities.

Title 42 remained in effect virtually unchanged ever since, despite the Border Patrol’s own data showing that apprehensions and expulsions have increased, not decreased, under the program.

American Immigration Council: Over 1.8 million expulsions under Title 42 have been carried out since the pandemic began. However, nearly half of those expulsions were of the same people being apprehended and expelled back to Mexico multiple times. This is because Title 42 has led to a significant increase in repeat crossings at the border. Half of all single adults from Mexico, Guatemala, Honduras, and El Salvador who have been expelled to Mexico under Title 42 have been apprehended crossing the border again. As a result, Title 42 has significantly increased overall border crossings. In fact, 1 in 3 apprehensions since Title 42 expulsions began have been of a person on at least their second attempt to cross the border.

Legal battles

The CDC announced in April 2022 that TItle 42 would be officially rescinded on May 23, 2022, given the increased availability of vaccines for Covid-19. Red states sued the administration to keep the policy in effect, arguing that local governments would be unfairly burdened due to costs associated with an increase in legal migrants. Louisiana District Judge Robert Summerhays, a Trump appointee, ruled in favor of the states and issued a nationwide injunction keeping Title 42 in place while legal challenges continued.

Then, in November 2022, District Judge Emmet Sullivan of the D.C. court ordered the end to Title 42, finding that the directive implementing the policy was “arbitrary and capricious in violation of the Administrative Procedure Act.” The case was brought by a group of asylum-seeking families who fled to the United States.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor,” Sullivan wrote. “Particularly in view of the harms Plaintiffs face if summarily expelled to countries they may be persecuted or tortured, the Court therefore vacates the Title 42 policy.”

U.S. Supreme Court

Many of the states that originally sued the administration to keep TItle 42 in place filed an emergency petition with the Supreme Court on Dec. 19 seeking to intervene in the lawsuit. The states—Arizona, Louisiana, Missouri, Alabama, Alaska, Kansas, Kentucky, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Tennessee, Utah, Virginia, West Virginia, and Wyoming—argued that they will “suffer substantial irreparable harm as a result of the imminent catastrophe” of canceling Title 42, and therefore are entitled to defend the policy in court.

Chief Justice John Roberts, joined by Justices Thomas, Alito, Kavanaugh, and Coney Barrett ruled yesterday that (1) the Supreme Court will hear arguments in the case next year and (2) the federal government cannot end Title 42 while the Court considers the case. In effect, this means the program will remain in place until Summer 2023.

Justices Sotomayor and Kagan would have denied the emergency request from the states and allowed the end of Title 42.

Liberal Justice Ketanji Jackson, meanwhile, joined a written dissent by conservative Justice Neil Gorsuch, pushing back on the majority’s willingness to interfere in the policies of the executive office.

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.

The only plausible reason for stepping in at this stage that I can discern has to do with the States’ second request. The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. The only means left to mitigate the crisis, the States suggest, is an order from this Court directing the federal government to continue its COVID-era Title 42 policies as long as possible…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.