Supreme Court allows pandemic-related border security policy to stand for now

By Tom Gantert | The Center Square

In a split decision, the U.S. Supreme Court on Tuesday allowed a Trump-era border enforcement policy to temporarily remain in effect. The nation’s highest court said it will hear arguments on the case in February 2023.

The Supreme Court’s 5-4 ruling allows the Title 42 public health policy to remain in effect after President Joe Biden planned to rescind it earlier this month.

At the beginning of the pandemic, President Donald Trump allowed the U.S. Centers for Disease Control and Prevention to suspend entry of immigrants from certain countries to prevent the spread of COVID-19.

The public health authority, known as Title 42, allowed Border Patrol agents to quickly expel foreign nationals, including asylum seekers. After the Biden administration announced Title 42 enforcement would end, more than a dozen states with Republican attorneys general filed suit, hoping to overturn the decision.

A lower district court ruled that Title 42 was invalid, “arbitrary and capricious” and ruled against the states that wanted to keep Title 42 in place.

The state of Arizona led an appeal that included 18 other states. A Circuit Court denied their motion but the Republican AGs then appealed to the Supreme Court. The Supreme Court’s decision Tuesday vacates the lower court’s decision.

“Our office has been proud to lead the charge on this important issue,” Arizona Attorney General Mark Brnovich said in a statement released on his website. “It’s disappointing the Biden administration is willing to sacrifice the safety of American families for political purposes.”

Border patrol agents encountered more than 3 million foreign nationals attempting to enter the country illegally in fiscal 2022, an all-time high. Border patrol agents have told The Center Square they expected a larger surge in border crossings once Title 41 is lifted.

The dissenting Supreme Court justices stated they didn’t discount the border states’ concerns with the drastic rise in illegal immigration since Biden took office.

“Even the federal government acknowledges ‘that the end of the Title 42 orders will likely have disruptive consequences,'” the dissent opinion stated. “But 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. We are a court of law, not policymakers of last resort.”

Conservative Justice Neil Gorsuch joined the court’s liberal arm in dissenting from the majority decision.

Image courtesy of Wikimedia Commons
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