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Justice Gorsuch sides with liberal justices in major Title 42 decision

By Sarah May
|
December 28, 2022

In a relatively uncommon turn of events, Supreme Court Justice Neil Gorsuch – appointed to the high court by former President Donald Trump – joined three members of the panel's liberal wing in opposition to the majority's ruling that will keep Title 42 border regulations temporarily in effect, as The Hill reports.

A dissent authored by Gorsuch was joined by the newest member of the high court, Justice Ketanji Brown Jackson, and though Justices Elena Kagan and Sonia Sotomayor did not formally sign on to his opinion, they indicated that they also oppose keeping COVID-era policy in place.

Status quo – for now

The 5-4 Tuesday ruling from the high court maintains, for the time being, Trump-era policy referred to as Title 42, which permits the swift expulsion of migrants at the southern border under a public health justification spurred by the coronavirus pandemic.

In the weeks prior to the anticipated expiration of the policy, migrants continued to surge to the southern border, and the crush of arrivals was so great that local officials feared a humanitarian disaster made even worse by plummeting temperatures and overstretched resources.

As the Texas Tribune reported earlier this month, El Paso Mayor Oscar Leeser issued an emergency declaration to help tackle the issue, stating that his community lacked the capacity to manage the increase in demand for food, shelter, and other services that the lifting of Title 42 was expected to produce.

Lesser noted that federal government estimates indicated that the flood of migrant making their way across the border could rise from roughly 2,500 daily to 6,000, a scenario that prompted Texas state Sen. Cesar Blanco to declare, “Our border community is facing an extraordinary humanitarian crisis.”

"We are a court of law"

Even so, Gorsuch opined on Tuesday in his dissent that Title 42's pandemic-era regulations are simply not the correct vehicle for addressing the situation in El Paso and elsewhere, saying, “The current border crisis is not a COVID crisis.”

“Courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency,” Gorsuch wrote.

Clarifying what he views is the panel's proper role, Gorsuch added, “We are a court of law, not policymakers of last resort.”

Referencing the 19 Republican state attorneys general who appealed to the high court and sought continuation of Title 42 rules, Gorsuch added, “The states may question whether the government followed the right administrative steps before issuing this decision (an issue on which I express no view).”

“But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed,” the justice concluded, indicating his unwillingness to extend them for reasons tangential to their original rationale.

Extension heralded

In the wake of the high court's ruling, reaction to the decision quickly began to pour in, as Fox News noted, with Sen. Mike Lee (R-UT) leading the way for those praising the outcome.

“SCOTUS's temporary stay of Title 42 protections will forestall a surge of trafficking and drugs. Lives will be saved. Yet as Democrats recently rejected by effort to remedy this situation legislatively, it falls to @POTUS to enforce the laws currently on the books,” Lee posted on Twitter.

Republican Texas Attorney General Ken Paxton also took to social media to comment on developments, saying, “Today, SCOTUS handed Texas and the USA a huge victory by allowing Title 42 to remain in place after Biden illegally tried to terminate this critical policy. I will continue to fight at every turn and do everything in my power to help secure our border and keep Texans safe.”

Congresswoman-elect Monica De La Cruz (R-TX) applauded the decision, but she also pointed to the need for a more permanent strategy for solving the crisis.

“I welcome the Supreme Court's decision to maintain Title 42, but the status quo is unsustainable. We need a long-term solution to our border crisis that protects American communities, holds the cartels accountable, and restores order to the border,” De La Cruz wrote on Twitter.

Battle continues

The American Civil Liberties Union, however, blasted the high court's decision, saying, “The Supreme Court has allowed Title 42, which was set to end this month, to remain in place temporarily while litigation continues. This decision allows our government to continue unlawfully expelling people seeking asylum. This cruel policy must end.”

As NBC News notes, the Supreme Court plans to hear oral arguments in February on the question of whether the aforementioned states can intervene with regard to the lifting of Title 42, and though the policy will stay in effect until at least late June when a decision on the matter is expected, it is clear that debate over this highly charged issue is nowhere near over.