By David M. Greenwald
Washington, DC – In a blow to human rights groups who have been seeking to halt the controversial Title 42 pandemic-era health measure that restricted migration at the southern border by allowing even those migrants who might otherwise qualify for asylum to be swiftly expelled at the border.
The justices in a 5-4 order that was unsigned, halted the ruling by a trial judge from November 15 at the US District Court in Washington, DC.
The order notes, “This stay precludes giving effect to the District Court order setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy.”
The court will hear oral arguments in February, and the stay would remain in effect pending an ultimate ruling.
Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Ketanji Brown Jackson dissented.
The district court however held that “the Title 42 orders were arbitrary and capricious, vacated them, and enjoined their operation.”
Arizona and other states appealed the ruling, “arguing that the federal government would not defend the Title 42 orders as vigorously as they might.”
In dissent, Gorsuch joined by Justice Jackson wrote, “that case-specific decision is not of special importance in its own right and would not normally warrant expedited review.”
Gorsuch wrote that he doesn’t “discount the States’ concerns” that the end of COVID-era Title 42 policies will precipitate “an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it.”
He notes that even he federal government acknowledges “that the end of the Title 42 orders will likely have disruptive consequences.”
The problem that he sees it, “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.”
The White House released a statement following the order, noting that they will comply with the order and prepare for the Court review.
“At the same time, we are advancing our preparations to manage the border in a secure, orderly, and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration,” the White House said.
They noted, “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.”
The order gives the Republicans in Congress time to work with Democrats, the White said, “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.”
Meanwhile the ACLU and other groups challenging Title 42 policy lament the ruling.
ACLU attorney Lee Gelernt, the lead lawyer in the Title 42 challenge responded, “The Supreme Court has allowed Title 42 to remain in place temporarily while the case is ongoing, and we continue to challenge this horrific policy that has caused so much harm to asylum seekers and cannot plausibly be justified any longer as a public health measure.”
Melissa Crow, director of litigation at the Center for Gender & Refugee Studies added, “The Supreme Court’s decision to extend the stay pending certiorari will have deadly consequences for people fleeing persecution.”
She argued, “Title 42 is an illegal policy that has caused irreparable harm to people seeking asylum. Every day that the expulsion policy remains intact, vulnerable individuals are left in legal limbo and exposed to grave dangers.”
Karla Marisol Vargas, senior attorney with the Beyond Borders Program at the Texas Civil Rights Project said, “We are incredibly disappointed by today’s ruling. Every day the Biden administration continues the use of Title 42 — which denies individuals fleeing violence and persecution the chance to legally request safety at our borders — is a day that leads to more needless deaths.
While critics argued that the law was unjust and perhaps illegal, others point out that the ruling in fact offers the Biden administration a reprieve from what was expected to be a torrent of new migrants each day.
“The administration asked to end Title 42, but there was no clear plan for how they would have managed the inevitable influx,” George Mason professor Justin Gest told the NY Times.
Justices Sotomayor and Kagan did not join Justice Gorsuch’s dissent and gave no reasons for their votes against granting the stay.