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Court dismisses Title 42 case

A side view of the Supreme Court building in pink sunlight.

At the beginning of the COVID-19 pandemic, the federal government began relying on a public health law, known as Title 42, to quickly expel migrants seeking asylum at the Mexico and Canada borders. On Thursday afternoon, the Supreme Court dismissed a dispute over that policy and whether a group of states with Republican attorneys general can step in to defend it. The justices sent the case, Arizona v. Mayorkas, back to the lower court with instructions to dismiss the states’ request as moot – that is, no longer a live controversy – after the policy itself expired on May 11.

Justice Neil Gorsuch penned an eight-page statement regarding Thursday’s order in which he complained not only that any crisis at the United States-Mexico border was not related to the COVID-19 crisis, but also about COVID restrictions and the government’s efforts to exercise emergency powers more broadly.

Title 42 refers to a federal law that gives the Centers for Disease Control and Prevention the power to bar the entry of individuals into the U.S. to protect the public from contagious diseases, even if those individuals otherwise would be eligible to apply for asylum or other forms of humanitarian relief.

In April of last year, the Biden administration announced its plans to end the policy, saying it was no longer necessary to protect public health. But in a lawsuit filed by migrant families in Washington, D.C., U.S. District Judge Emmet Sullivan ruled that the policy itself is illegal and ordered the government to end it. A group of 19 states with Republican attorneys general then tried to intervene in the case, hoping to defend the lawfulness of the policy and reverse Sullivan’s ruling on appeal.

When the U.S. Court of Appeals for the District of Columbia Circuit declined to allow the states to join the case, the states came to the Supreme Court with an emergency appeal, asking the justices to keep the policy in place. By a vote of 5-4, the justices granted that request and agreed to hear the procedural dispute on an expedited basis. Less than two weeks before the oral argument in the case, however, the justices took the case off their oral argument calendar, presumably because the COVID-19 public health emergency (and therefore the Title 42 policy) was slated to expire on May 11.

Thursday’s brief order officially dismissed the case from the Supreme Court’s docket. Justice Ketanji Brown Jackson dissented from the court’s decision to vacate the D.C. Circuit’s order denying the states’ motion to intervene in the case. Instead, she would have simply dismissed the case, leaving the D.C. Circuit’s ruling in place, on the ground that it was a mistake to grant review.

In his statement, Gorsuch – who dissented from the court’s order in December keeping the policy in place and fast-tracking the case – stressed that “the current border crisis is not a COVID crisis.” In his view, the court “took a serious misstep when it effectively allowed” the states “to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one.”

But more generally, Gorsuch suggested, the COVID-19 crisis may have resulted in “the greatest intrusions on civil liberties in the peacetime history of this country,” on the state, local, and federal levels. He faulted state legislatures and Congress, but also the courts, for failing to step in to guard against such intrusions. “Make no mistake,” he concluded, “decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Court dismisses Title 42 case, SCOTUSblog (May. 18, 2023, 7:24 PM),