Justices take up fight to prolong pandemic-born asylum barriers
Appeal from conservative states - including Arizona - puts Biden administration’s immigration policies in hands of high court
In a split decision on Tuesday, the Supreme Court agreed to hear a fight between the Biden administration and several red states over the conclusion of an immigration policy intended to slow the spread of coronavirus.
The 5-4 order from the court’s emergency docket stems from an application from conservative states attempting to block the conclusion of Title 42 — an immigration policy that restricts asylum requests based on the Covid-19 pandemic. Justices Sonia Sotomayor and Elena Kagan would have denied the application. Justice Neil Gorsuch — joined by Justice Ketanji Brown Jackson — wrote a dissenting opinion to the court’s order.
President Joe Biden has done away with most of his predecessor’s strict immigration policies in favor of a more moderate approach, but Title 42 has remained. With migrants stuck in limbo for years on the Mexico border, there is a concern that unwinding the policy will lead to an influx of immigration beyond government resources.
Title 42’s demise began when a federal judge struck down the policy at the request of immigration advocates. When the Biden administration revealed its intention to comply with the ruling, 19 Republican-led states intervened. Led by Arizona, the states attempted to get an emergency order halting the administration’s actions on the policy. The D.C. Circuit denied their request, sending the legal battle to the high court steps.
While the Biden administration’s immigration policy hangs in the balance, the court agreed Tuesday only to decide if the 19 states have a basis to intervene in the case.
Last week, the states asked the justices to grant an emergency stay blocking the conclusion of Title 42. Chief Justice John Roberts agreed to a temporary pause on the administration’s actions to consider the appeal.
The states say the border will be overwhelmed with migrants if Title 42 is ended. They also claim the administration’s planned conclusion of the policy is evading notice-and-comment rules under the Administration and Procedure Act.
On the other side, the government says obsolete public health orders shouldn’t dictate the nation’s immigration policies. The government did acknowledge a possible increase in border crossings but said immigration policies dictated by Congress would be sufficient to control any disruptions.
Gorsuch said it’s not clear what the court’s intervention in the dispute.
“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 Trump appointee wrote.
Conceding that the states could find issues with the way the administration has unwound Title 42, Gorsuch says the states do not dispute that the public health emergency has lapsed. He said the court shouldn’t be granting an emergency request without need.
“It is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life,” Gorsuch wrote.
Gorsuch acknowledges the states’ concern over a resulting border crisis once Title 42 falls but said that does not justify the court’s stepping into this case.
“The current border crisis is not a COVID crisis,” Gorsuch wrote. “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.”