SCOTUS keeps border expulsions indefinitely

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The Supreme Court on Tuesday allowed U.S. border officials to continue expelling migrants under a policy known as Title 42 indefinitely, granting a petition from Republican-led states to prevent the Biden administration from immediately ending the pandemic-related measure.

The high court decided to hear a request from 19 Republican-led states who were seeking to delay the end of Title 42, which was originally set to expire on Dec. 21 because of a lower court order that found the policy to be unlawful.

The Supreme Court will now hear arguments on whether it should allow the Republican-controlled states to defend Title 42's legality during its February 2023 session. In the meantime, the court agreed to suspend the lower court order which had invalidated the expulsion policy. That means Title 42 will likely remain in place for several months pending the high court's review.

First invoked in March 2020, at the outset of the COVID-19 pandemic, Title 42 is a public health law dating back to the 19th century that federal border officials have cited to expel migrants 2.5 million times to Mexico, or their home countries, without allowing them to request asylum, a right enshrined in U.S. and international refugee law.

Liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined conservative Justice Neil Gorsuch in opposing the Republican-led states' request. In a dissenting opinion in which he was joined by Jackson, Gorsuch wrote that it was improper for the Supreme Court to keep the border expulsions in place, noting the GOP states did not "seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed."

Gorsuch recognized the states' concerns about Title 42's termination potentially fueling a bigger spike in migrant arrivals, but he said, "the current border crisis is not a COVID crisis."

Federal courts, he wrote, "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. We are a court of law, not policymakers of last resort."