SCOTUS Votes to Retain Title 42

Published on December 28th, 2022

The Supreme Court voted 5-4 on Tuesday to retain immigration enforcement policy Title 42. 

This is a significant ruling, because as we blogged about recently, the policy was set to expire on 12/27/22 at midnight. The ruling puts a hold on a lower court ruling from U.S. District Judge Emmet Sullivan of Washington, D.C. that would have ended the policy.

According to a Reuters report re-posted on Yahoo News, the ruling saw the vote break down along ideological lines. Justice Neil Gorsuch dissented from the more conservative majority on the court.

Gorsuch apparently called the order “unwise” and joined liberal justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in his dissent. Here’s what Gorsuch said based on the Reuters report.

‘But the current border crisis is not a COVID crisis,’ Gorsuch wrote in an opinion joined by Jackson. ‘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.’

The ruling ensures that Title 42 will remain in place for the foreseeable future.

According to a report in NBC News, the SCOTUS will hear oral arguments this coming February about states intervening and will have a decision due by the end of June. This move also does not prevent the federal government from taking further action related to this policy.

That said, for now retaining Title 42 should help immigration enforcement officials stem the tide of the record breaking number of encounters at the border.

Just last month, there were over 233,000 encounters and 73,000+ gotaways. November also marked the ninth straight month with over 200,000 border encounters.

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