Supreme Court Decides To Allow Title 42 To Stay In Effect For Now

December 27, 2022

supreme court Photo by Ian Hutchinson on Unsplash

The Supreme Court said on Tuesday it would allow the Title 42 health policy that authorizes migrant expulsions on the southern border to remain in effect while legal challenges play out.

The Court voted 5-4 to grant a request from Republican officials in 19 states to block a DC Federal Court’s decision that would have ended the policy, after Judge Emmet Sullivan ruled in November that the policy was unlawful, calling it “arbitrary and capricious.”

Title 42 is a decades-old clause in the health code that allows the government to take emergency action to stop the “introduction of communicable diseases” into the U.S., but it had been rarely used until the Trump Administration implemented it as an immigration policy when the Covid pandemic struck. The Biden Administration continued its use, invoking it to expel migrants more than 2 million times according to U.S. Customs and Border Protection (CBP), although many were repeat border-crossers.

The Supreme Court on Tuesday scheduled oral arguments for February to hear the Republican-led states’ appeal. However, the Court said in a statement that “the stay itself does not prevent the federal government from taking any action with respect to that policy.”

That means that in the Court’s view, the Biden Administration still has the power and prerogative to discontinue the Title 42 migrant expulsion policy on its own if it so chooses.

The Justices voted along mostly ideological lines, with only conservative Justice Neil Gorsuch voting with the three liberal Justices against keeping the policy in place. 

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