Supreme Court Cancels Arguments on Title 42

February 16, 2023

The Supreme Court on Thursday removed from its argument calendar a bid to keep Title 42, the pandemic-era policy that allowed for migrant expulsions at the border.

The decision comes after a court filing by the DOJ, which said the case would become moot when Title 42 expires as a result of President Biden’s announcement that he’ll end the national emergency and the public health emergency for Covid-19 on May 11.

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 roughly 2 million times, although many were repeat border-crossers.

Republican officials in 19 states had asked the Supreme Court to block a DC federal court’s decision that would have ended Title 42, after Judge Emmet Sullivan ruled in November that the policy was unlawful, calling it “arbitrary and capricious.”

In December the Court had left Title 42 in place in a 5-4 decision, granting a request by the Republican state attorneys general to put the policy on hold for the time being. Conservative Justice Neil Gorsuch joined the Court’s liberal members—Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—in dissenting from that decision.

The Justices were due to hear oral arguments in the Title 42 case on March 1. 

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