Supreme Court nixes Title 42 border policy case before scheduled arguments

by Jacob Fuller

The U.S. Supreme Court on Thursday removed from its argument calendar a Republican bid to keep in place a COVID-19 pandemic-related policy introduced under former President Donald Trump that has allowed American officials to quickly expel hundreds of thousands of migrants at the U.S.-Mexico border.

The Justice Department had said in a court filing that the case would become moot when the policy, known as Title 42, expires as a result of an announcement by President Joe Biden’s administration that the COVID-19 public health emergency will end effective May 11. The justices were due to hear oral arguments in the case on March 1.

At issue in the case, which the court agreed to hear in December, was whether a group of Republican state attorneys general may intervene to defend the Title 42 expulsions after a U.S. judge ruled the public health order unlawful in a lawsuit by asylum-seeking migrant families represented by the American Civil Liberties Union.

The Justice Department, in a Feb. 7 filing, told the Supreme Court: “The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render this case moot.”

The Supreme Court in December left in place the Title 42 policy, granting in a 5-4 vote the request by Republican state attorneys general to put on hold U.S. District Court Judge Emmet Sullivan’s November decision invalidating the emergency public health order. Conservative Justice Neil Gorsuch joined the court’s liberal members – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – dissenting from that decision.

Title 42 was first implemented in March 2020 under Trump, a Republican, when the COVID-19 pandemic began.

Biden kept Title 42 in place after taking office in January 2021 despite fierce criticism from within his own party. Biden as a candidate had promised to reverse some of Trump’s hardline immigration policies.

Biden’s administration sought to lift the policy after U.S. health authorities said last year it was no longer needed to prevent the spread of COVID-19.

Copyright 2023 Thomson/Reuters