Breaking News: U.S. Supreme Court Issues Order in Arizona et al. v. Mayorkas, Keeping in Place Title 42 for Now

Today the U.S. Supreme Court issued an order in Arizona et al. v. Mayorkas that keeps in place the pandemic-era emergency Title 42 program that turns away asylum seekers at the border.

A copy of the one-page order and two-page dissent authored by Justice Gorsuch is available here. 

In the unsigned order, the Court granted the application as a petition for writ of certiorari and ordered the parties to “brief and argue the following question: Whether the State applicants may intervene to challenge the District Court’s summary judgment order.”

The Court also granted a stay, which means that Title 42 will stay in place while the case is briefed. As the Court explained, by granting the stay, the Court “precludes giving effect to the District Court order setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy. The Court’s review on certiorari is limited to the question of intervention.”

The Court further directed the Clerk to set an expedited briefing schedule so that the case will be argued in February 2023.

Justices Sotomayor, Kagan, Gorsuch, and Jackson dissented, with Justice Jackson joining Justice Gorsuch in a written dissent. In it, Gorsuch explains why he would deny the states’ request for a stay of the district court order and request for an expedited briefing:

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. The D. C. Circuit’s intervention ruling takes on whatever salience it has only because of its presence in a larger underlying dispute about the Title 42 orders. And on that score, it is unclear what we might accomplish. Even if at the end of it all we find that the States are permitted to intervene, and even if the States manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed. In April 2022, the federal government terminated the Title 42 orders after determining that emergency immigration restrictions were no longer necessary or appropriate to address COVID–19. 87 Fed. Reg. 19944. The States may question whether the government followed the right administrative steps before issuing this decision (an issue on which I express no view). But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life.

For more on the devastating impact of Title 42 and other Trump-era changes on asylum seekers, see Lindsay Muir Harris, Asylum Under Attack, 67 Loyola Law Review 1 (2021).

IE