Supreme Court Justices Ketanji Brown Jackson and Neil Gorsuch made an unexpected team on Tuesday by issuing a dissent against the majority decision to keep Title 42 in place indefinitely. At the same time, the highest court considers an argument from 19 primarily Republican-led states.
The states challenged a district court’s ruling last month that would abandon Title 42, which was put in place by the Trump administration in March 2020 to allow officials to expel migrants on public health grounds.
Justice Gorsuch, appointed by former President Donald Trump, wrote a dissent and was joined by Jackson, who was nominated by President Joe Biden earlier in the year. The two justices argued that Congress and the Biden administration have failed to adequately address the rapidly growing immigration crisis looming after Title 42 is vacated. However, they wrote that it is not the Supreme Court’s job to issue policies when elected officials fail.
The states who filed suit suggested the Supreme Court is the only means left to mitigate the crisis with an order directing the federal government to continue its Covid-19-era Title 42 policies for as long as possible.
“The only means left to mitigate the crisis, the States suggests, 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,” wrote Gorsuch.
“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. But the current border crisis is not a Covid crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials still need to address a different emergency. We are a court of law, not policymakers of last resort,” said Gorsuch.
Justices Elena Kagan and Sonia Sotomayor said they would deny the application but didn’t respond to Gorsuch’s dissent. The five remaining justices — Samuel Alito, Amy Coney Barrett, Clarence Thomas, John Roberts, and Brett Kavanaugh — agreed to hear the challenge from the states during the argument session in February 2023.
Republicans and some Democrats criticize the administration for not preparing for the end of Title 42
Some Democrats and Republicans have criticized the Biden administration for failing to prepare adequately for the end of Title 42.
Republican Texas Governor Greg Abbott has been bussing migrants from border communities to the Northeast and recently wrote President Biden last week that the “terrible crisis” at the border is a “catastrophe of your own making.”
“The need to address this crisis is not the job of border states like Texas,” wrote Abbott on December 20. “Instead, the U.S. Constitution dictates that it is your job, Mr. President, to defend the borders of our country, regulate our nation’s immigration, and manage those who seek refuge here.”
Gorsuch noted that the federal government admits that ending the policy could exacerbate an unsustainable border crisis.
“The government in no way seeks to minimize the seriousness of that problem,” said the Department of Justice’s written opposition to the stay on Title 42 last week. Meanwhile, the Biden administration said it would comply with the order while it prepares for the end of Title 42.
“We are advancing our preparations to manage the border in a secure, orderly, and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration,” said Karine Jean-Pierre, White House press secretary, in a statement.