The decision doesn’t actually require continuation of the policy, but will have that effect indirectly. Justice Neil Gorsuch’s dissent explains why the Court was wrong to take this step.
the Supreme Court issued a 5-4 ruling that is likely to have the effect of perpetuating Title 42 “public health” expulsions of migrants at the US southern border. The decision stays a November DC district court ruling holding that the policy was illegal because it violates the Administrative Procedure Act, until the Supreme Court has a chance to consider the case more fully. Since March 2020, over 2 million migrants have been expelled under the Title 42 policy, including many who would otherwise have had the right to stay in the US long enough to apply for asylum. That has resulted in great suffering among migrants expelled to areas where they are threatened with violence, persecution, and other dangers.
The Supreme Court is not going to consider the case on the merits. Rather, it will only review the December 16 decision of the US Court of Appeals for the DC Circuit that prevented a group of GOP-controlled states from intervening in the case after the Biden Administration appeared ready to end the Title 42 policy rather than continue to defend it.
Title 42 expulsions were begun in March 2020 by the Trump Administration, and perpetuated in modified form by the Biden Administration until it tried to end them in May of this year, only to be stopped by a federal district court ruling in Texas, holding that the administration ended the policy without going through proper procedures under the APA. Had the Supreme Court allowed the District of DC ruling to stand, it would have taken precedence over the Texas decision, because the former holds that the Title 42 expulsions were illegal to begin with. If so, it doesn’t matter if the policy were ended in a way that violates the APA, because it was never valid in the first place, and thus was not protected by the APA’s rules.
Tuesday’s ruling doesn’t actually require the continuation of the Title 42 expulsions. Indeed, it specifically states that it “does not prevent the federal government from taking any action with respect to that policy,” and that “[t]he Court’s review on certiorari is limited to the question of intervention” by the state governments.
But because the Court has stayed the District of DC ruling in the meantime, it has the effect of maintaining the Texas district court injunction, which in turn bars the Biden Administration from ending the policy—at least until such time as the latter ruling is reversed by Fifth Circuit appellate court or by the Supreme Court.
Justice Neil Gorsuch joined the three liberal justices in dissenting from the stay ruling. Gorsuch authored a dissent joined by Justice Ketanji Brown Jackson thatcompelling explains why the majority was wrong:
Reasonable minds can disagree about the merits of the D.C. Circuit’s intervention ruling. But that case-specific decision is not of special importance in its own right and would not normally warrant expedited review.
