Supreme Court rules Title 42 can remain in effect while case is litigated

December 28, 2022

President Joe Biden was dealt a blow by the Supreme Court this week when it temporarily allowed a Trump-era border policy to remain in effect.

As Fox News explained, that decision concerns Title 42, a rule which allows illegal immigrants to be quickly deported.

Title 42 will remain in effect at least until February

While the Biden administration has fought for months to have Title 42 done away with, 19 Republican state attorneys general are suing to keep it in place.

The nation's highest judicial body voted five to four on Tuesday that it can remain in effect until the case is heard, with oral arguments expected to come in late February.

Fox News noted last week that the plaintiffs say an already raging migrant crisis will reach catastrophic proportions if Title 42 is rescinded.

"Enormous crisis"

"Federal Respondents do not deny that the denial of a stay here will occasion an enormous crisis at the southern U.S. border," their brief argued.

"Indeed, they explicitly admit… that a stay denial 'will likely lead to disruption and a temporary increase in unlawful border crossings…'" the brief continued.

Republicans are not alone in demanding that Title 42 remain in effect, as even some Democrats have echoed that position.

One of them is West Virginia Sen. Joe Manchin, who told CBS News last month, "We have a crisis of the border. Everyone can see that. It needs to be extended until we can get really, truly immigration reform."

Conservative Gorsuch joins with liberal Jackson in his dissent

In an unusual move, the Trump-appointed Justice Neil Gorsuch authored a dissenting opinion which was joined by Justice Ketanji Brown Jackson, who was nominated by President Joe Biden.

"The only means left to mitigate the crisis, the States suggest, is an order from this Court directing the federal government to continue its COVID-era Title 42 policies as long as possible—at the very least during the pendency of our review," Fox News quoted Gorsuch as writing in his dissent.

"For my part, I do not discount the States’ concerns. Even the federal government acknowledges ‘that the end of the Title 42 orders will likely have disruptive consequences,'" he continued.

"But the current border crisis is not a COVID crisis," Gorsuch insisted, stressing, "We are a court of law, not policymakers of last resort."

"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."

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