The next chapter in the ongoing battle over the Trump-era immigration policy known as Title 42 reached the Supreme Court. The Court ruled in favor of continuing the policy, for now.

In a 5-4 decision, the Supreme Court ruled to extend a temporary administrative stay order granted by Chief Justice Roberts. The order prevents Title 42’s termination pursuant to the D.C. federal court’s ruling to terminate it last month.

The Court’s December 27 ruling came after a group of 19 states, represented by their respective attorneys general, challenged the D.C. court’s order to vacate Title 42. The Court will hear oral arguments on the matter in February 2023. The final ruling will likely be released the following summer. Until then, Title 42 remains in place, no longer subject to the November order to vacate the policy effective December 21.

The 19 states became a party to the latest Title 42 litigation as a result of their motion to intervene in the November lawsuit brought to the D.C. court. See our article for more on the November suit, and for an in-depth discussion of the Title 42 policy.

On December 16, the D.C. federal Court of Appeals ruled against the 19 states’ intervention argument, saying that the states waited too long to intervene in a case that had been pending for nearly two years prior. The D.C. Court of Appeals ruling triggered an emergency application to the Supreme Court, specifically to Chief Justice John Roberts, who oversees emergency matters arising from the D.C. federal courts. On December 19, Chief Justice Roberts issued an order in favor of the states, temporarily preventing Title 42’s termination on December 21 as initially planned. See our article for more.

In the most recent ruling, the Court’s majority said it will only address the procedural issue of intervention presented by the 19 states. They are not examining the larger issue of whether Title 42 is a legally enforceable policy.

Justices Gorsuch and Jackson wrote in their dissent that the Court made a mistake in agreeing to expedite its review of the states’ argument, writing that “The current border crisis is not a Covid crisis” and “We are a court of law, not policymakers of last resort.” Justices Kagan and Sotomayor also dissented.

While the 19 states celebrated the Court’s latest ruling as a victory, the Biden Administration seems to regard the ruling as both a win and a loss. The administration has continuously tried to put an end to the Title 42 policy, but it has candidly acknowledged that the extra time afforded by the ruling will help the transition away from Title 42. Ultimately, both sides of the issue are putting increased pressure on Congress to pass legislation to fill the gaps in immigration procedures that Title 42 can no longer address.

If you have questions about Title 42 or any other immigration-related issue, contact us at ILBSG. We actively monitor ongoing updates to Title 42 and U.S. immigration policy, in general, to ensure our clients get the right advice.

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