On Tuesday, Justices Neil Gorsuch and Ketanji Brown Jackson formed an unlikely alliance when they dissented from the majority opinion to uphold Title 42 permanently. At the same time, the Supreme Court considered the arguments brought forward from 19 mostly Republican-led states.
Last month, those states filed an appeal with the district court to stop it from nullifying Title 42, a law that the Trump administration passed in March 2020 to allow officials to expel migrants on public health grounds.
Gorsuch (a Trump appointee) and Jackson (nominated by President Joe Biden) dissented. The two justices argued in their opinion that it is not the Supreme Court’s role to make a policy where legislatures and executive branches fall short and that the Biden administration and Congress have failed to adequately address the impending immigration crisis if Title 42 is vacated.
In light of the dire situation, Gorsuch argued that the Supreme Court should issue an order directing the federal government to maintain COVID-era Title 42 policies for as long as possible, if not permanently.
While the current border crisis is not a COVID crisis, he continued in his dissent that he does not discount the States’ concerns and that the federal government acknowledges that ending the Title 42 orders will likely have an undesirable outcome.
He went on to say that the Supreme Court is a court of law, not a policymaker of last resort and that they should not be involved in reinforcing administrative doctrines designed for one crisis only because elected leaders have failed to respond to a different emergency.
Sonia Sotomayor and Elena Kagan, both Supreme Court justices, said they, like Gorsuch, would rule against the application but did not join in his dissent. John Roberts, Samuel Alito, and others have all agreed to hear the states’ challenge in February 2023.
The Biden administration has been heavily criticized by Republicans and some Democrats for its lack of readiness for the end of Title 42. The “terrible crisis” at the border cities is a “catastrophe of your own making,” as stated by Texas Governor Greg Abbott in a letter to Vice President Joe Biden last week. Abbott has been busing migrants from local populations to cities in the Northeast.
Abbot went on to say that it is not the responsibility of states like Texas that are on the border to address the crisis. Instead, the President is responsible for protecting U.S. borders, controlling immigration, and managing asylum seekers under the Constitution.
On Tuesday, the Biden administration announced it would follow the order as it readied for Title 42’s sunset. Karine Jean-Pierre, press secretary of the White House, said in a statement that the government is making preparations to manage the border in a secure, orderly, and humane way once Title 42 is lifted.