Supreme Court keeps Title 42 in place as US grapples with border surge; Gorsuch dissents

By Ryan Foley, Christian Post Reporter Wednesday, December 28, 2022

The U.S. Supreme Court has ordered Title 42 to remain in place as the southwestern U.S. continues to grapple with the fallout of a surge in illegal immigration.

In an unsigned order Tuesday, the nation's high court granted an application for a stay in the case of Arizona, et al. v. Alejandro Mayorkas, Secretary of Homeland Security, which sought the reversal of a lower court ruling vacating Title 42.

The Trump-era immigration policy was implemented to allow border officials to quickly expel migrants seeking entry into the U.S. in light of the public health emergency presented by the coronavirus pandemic in 2020. 

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The stay will remain in effect until the justices issue a final ruling on the case at hand. The order directs the clerk of the court to “establish a briefing schedule that will allow the case to be argued in the February 2023 argument session.”

In dissent, Justice Neil Gorsuch, a Trump appointee, stressed that "the current border crisis is not a COVID crisis."

"And 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 in a dissent joined by Justice Ketanji Brown Jackson. "We are a court of law, not policymakers of last resort."

Tuesday’s order comes shortly after U.S. Customs and Border Protection released statistics showing 233,740 encounters between migrants seeking entry into the U.S. at the southwest border and law enforcement officials in November. The number of border crossings constitutes an increase of more than 2,000 from October and nearly matches the record 241,136 border crossings recorded by the government agency in May 2022.

In every month since President Joe Biden took office in January 2021, the number of border crossings has remained above 100,000. In April 2020, by comparison, after the Trump administration implemented Title 42 and the "Remain in Mexico" policy requiring asylum seekers to wait in Mexico while their asylum claims were adjudicated, just 17,106 encounters were recorded.

The Biden administration has abandoned the policy and the construction of a border wall at the U.S.-Mexico border. The number of monthly border crossings has consistently exceeded 200,000 since March of 2022, steadily rising through May before dropping in June and July. The number of encounters recorded at the southwest border has continually increased since August 2022.

The Supreme Court’s order comes a week after the court issued a temporary stay ahead of the expected termination of Title 42 on Dec. 21. 

The influx in migration has caused a strain on border cities like El Paso, Texas. The Democratic El Paso Mayor Oscar Leeser declared a state of emergency as the city is unable to provide the resources necessary to care for the large volume of migrants that have poured into the border jurisdiction.

"I said from the beginning that I would call [a state of emergency] when I felt that either our asylum-seekers or our community was not safe,” Leeser said at a press conference earlier this month. “I really believe that today our asylum-seekers are not safe as we have hundreds and hundreds on the streets, and that’s not the way we want to treat people.”