After the Biden administration asked it to do so, on Feb. 16 the Supreme Court canceled highly anticipated upcoming arguments over the fate of the pandemic-era Title 42 policy that allows the rapid expulsion of would-be migrants at the border.
Oral arguments in the case, Arizona v. Mayorkas, court file 22-592, had been scheduled for March 1. The new one-sentence entry on the court’s docket says the case is “removed from … the argument calendar,” without explanation or any indication of how the justices voted on the matter.
President Joe Biden’s Office of Management and Budget said on Jan. 30 that it would extend the soon-to-expire emergencies to May 11 “and then end both emergencies on that date.” The current national emergency and public health emergency were declared by the Trump administration almost three years ago.
In March 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued an emergency order under Title 42 of the U.S. Code regarding individuals recently in a country where a communicable disease is present. This allowed the government to promptly return individuals illegally crossing the border to Mexico without a formal hearing on the theory that their presence may pose public health risks. More than 2 million individuals have been expelled under the policy.
The Biden administration reluctantly continued enforcing the Title 42 order after Biden assumed the presidency in January 2021, but on April 1, 2022, the new administration said it would end the order by May 23, 2022. Courts blocked the decision to rescind the order and the policy continued in effect at the border.
On Nov. 15, 2022, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia ruled that the Title 42 policy was unlawful and blocked it, finding the government had failed to show that suspending normal immigration laws was justified.
Responding to an emergency application by Republican attorneys general in 19 states, led by Arizona and Louisiana, on Dec. 19, 2022, Chief Justice John Roberts issued a temporary stay preventing the Biden administration from dropping Title 42. On Dec. 27, 2022, the full Supreme Court extended the stay, voting 5–4 to issue an emergency order allowing the program to continue.
The Biden administration had asked the Supreme Court on Feb. 7 to dismiss 19 states’ challenge to the cancellation of the Title 42 policy. The administration argued that its plan to terminate the public health emergency on May 11 would make the case moot.
In its new order, the Supreme Court did not indicate if its stay of Dec. 27, 2022, that prevented the withdrawal of the Title 42 policy was rescinded.
Christopher J. Hajec, director of litigation for the Immigration Reform Law Institute (IRLI), which filed a friend-of-the-court brief supporting the states that favored extending the Title 42 policy, suggested it was unclear if the justices consider the appeal to be finished.
“Perhaps they are waiting to see if the emergency actually ends on May 11,” Hajec told The Epoch Times by email.
Open-borders and humanitarian groups say the Title 42 policy prevents those fleeing persecution and violence in their home countries from obtaining legal due process when they arrive in the United States; however, the states say withdrawing the policy would flood already overburdened border facilities with even more illegal aliens.
The states previously told the high court that failing to uphold the policy “will cause a crisis of unprecedented proportions at the border” and that “daily illegal crossings may more than double.”
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