BORDER SECURITYU.S. Supreme Court Rules to Keep Title 42 for Now

By Uriel J. García and Alexa Ura

Published 28 December 2022

The court ordered the Biden administration to continue enforcing the policy while Texas and other states that want to keep the Trump-era rule in place prepare their legal arguments.

The U.S. Supreme Court ruled Tuesday to keep in place the emergency health order the federal government has used for more than two years to quickly turn away migrants, including those seeking asylum, at the southwest border.

The latest ruling replaces an order issued by Chief Justice John G. Roberts last week that halted the lifting of the health policy, known as Title 42, which the Biden administration had planned to wind down. Title 42 will remain in place for at least several more months. In its Tuesday order, the high court agreed to hear arguments in February on whether an Arizona-led coalition of 19 states, including Texas, can challenge a lower-court ruling that ordered the Biden administration to lift Title 42.

That lower-court ruling will remain blocked until the high court makes a decision on the more procedural issue of whether the GOP-led states can intervene in a lawsuit originally filed by immigrant advocates against the federal government.

The Tuesday ruling came down on a 5-4 vote, with Justice Neil Gorsuch joining the court’s three liberal justices in opposing the majority’s decision.

The Trump administration invoked the use of Title 42 in March 2020 as the COVID-19 pandemic began, calling it a necessary step to help stop the virus’s spread in immigrant detention centers. Dr. Anthony Fauci, the nation’s top infectious disease expert, has since said that immigrants are not driving up the number of COVID-19 cases.

Immigration officials have used the health order more than 2 million times to expel migrants, some of whom have been removed multiple times after making repeated attempts to enter the U.S. Under Title 42, the recidivism rate — the percentage of people apprehended more than once by a Border Patrol agent — has increased from 7% to 27% since fiscal year 2019.

The request from the coalition of states for the Supreme Court to weigh in came after Judge Emmet Sullivan of the U.S. District Court in Washington, D.C., ruled last month that the Centers for Disease Control and Prevention’s use of the order — which removes migrants from the U.S. without allowing them to access the asylum process — is “arbitrary and capricious” and a violation of the law because it was not implemented properly.

Sullivan ordered the Biden administration to immediately lift Title 42, then later agreed to give the federal government until Dec. 21 to prepare for the change.

Sullivan’s ruling stems from a lawsuit filed in January 2021 by the American Civil Liberties Union and two Texas-based immigrant rights groups that argued Title 42 violated U.S. asylum laws and that the Trump administration used the pandemic as a pretext to invoke Title 42 and use it as an immigration tool.

Another federal court also weighed in on Title 42 after Arizona and 18 other states filed a federal lawsuit on April 3 in Louisiana, asking a judge to stop the government from lifting Title 42. Texas filed a separate lawsuit on April 22 seeking the same thing, but dropped its lawsuit and joined the other states’ suit.

In May, U.S. District Judge Robert R. Summerhays blocked the Biden administration from ending Title 42. The administration appealed, and that case remains pending in the 5th U.S. Circuit Court of Appeals.

Uriel J. García is an immigration reporter based in El Paso. Alexa Ura is a reporter at The Texas Tribune.This story is published courtesy of the Texas Tribune, a nonpartisan, nonprofit media organization that informs Texans — and engages with them — about public policy, politics, government, and statewide issues.