The Supreme Court stayed a trial judge’s ruling that would have ended Title 42 and has, for the time being, allowed the rule to remain in place. The court issued an unsigned 5-4 opinion that was a victory for the 19 states that had sued the federal government to keep Title 42 in place.
Title 42 is a 1940s-era rule that limits immigration and asylum seekers during a national health crisis. It was originally put in place by Donald Trump in March 2020 and severely restricted the number of people seeking asylum by expelling all but a fraction of those who showed up at the border.
Joe Biden eased the restrictions, but about 65% of all asylum seekers who showed up at the border were still expelled.
The stay says nothing about the lawsuit by GOP states seeking to keep Title 42 in place.
The court said that it would hear arguments in the case in February and that the stay would remain in place until it issued its ruling. The justices said they would only address the question of whether the 19 mainly Republican-led states that had sought the stay could pursue their challenge to the measure.
Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Ketanji Brown Jackson dissented.
The court’s order was a provisional victory for the 19 states that had sought to keep Title 42 in place, saying it was needed to prevent a surge of border crossings. “The failure to grant a stay will cause a crisis of unprecedented proportions at the border,” lawyers for the states wrote in an emergency application, adding that “daily illegal crossings may more than double.”
“We are deeply disappointed for all the desperate asylum seekers who will continue to suffer because of Title 42, but we will continue fighting to eventually end the policy,” said Lee Gelernt, a lawyer with the American Civil Liberties Union, which had been arguing to end Title 42′s use.
The precise issue before the court is a complicated, largely procedural question of whether the states should be allowed to intervene in the lawsuit, which had pitted advocates for the migrants against the federal government. A similar group of states won a lower court order in a different court district preventing the end of the restrictions after the Centers for Disease Control and Prevention announced in April that it was ending use of the policy.
It will be until at least the summer before we get a definitive decision on whether the rule will stay or go. But there are hundreds of thousands of asylum seekers within a couple of hundred miles of the U.S. border, and pressure will build on Biden to find a way to allow them to enter the country.
This was just round one. Round Two promises to be a knockout for one side or the other.