WASHINGTON – The Supreme Court on Thursday dismissed an appeal challenging the end of Title 42, the pandemic-era policy allowing border officials to expel migrants seeking asylum.
The move was widely expected − the court had already stricken the case from its argument calendar − though it served as a coda to the legal wrangling over the policy that has worked its way through courts for months. And it prompted a scathing statement from Justice Neil Gorsuch questioning the use of presidential emergency powers.
“The concentration of power in the hands of so few may be efficient and sometimes popular,” Gorsuch wrote. “But it does not tend toward sound government.”
The Supreme Court in December initially agreed to hear the challenge from conservative states that wanted to intervene to defend Title 42 after a federal judge ordered the Biden administration to shut it down. But the underlying case appeared to evaporate when the administration lifted the public health emergency that authorized the program. The administration lifted the health emergency that authorized the program last week.
Explainer:What is title 42? What crossings at the Southern border look like now that the policy has ended.
Impact:Title 42 is over; Biden says new approach at southern border will take time to work
Court weighs in as White House still assessing end of Title 42
The Supreme Court’s single paragraph order Thursday was unsigned, so it was not clear how each justice voted. Justice Ketanji Brown Jackson said she would have dismissed the case at the Supreme Court without upsetting a lower court’s decision against the states who filed the challenge.
The Biden administration said this week that it is still assessing the impact of the end of controversial immigration rules known as Title 42, which made it easier to expel migrants seeking asylum at the southern border. The rules had been in place for three years as part of the federal public health emergency for COVID-19.
Thousands of migrants have been waiting in Mexico for the restrictions to end, and analysts predicted chaos and a surge of migrants looking to cross the border once the policy was lifted. So far, that hasn’t happened.
Gorsuch: COVID restrictions were historic ‘intrusions’
Gorsuch said he didn’t disagree with the court’s decision but wanted to air broader concerns about the ability of presidents to use emergency power to bypass Congress. He lamented what he described as potentially “the greatest intrusions on civil liberties in the peacetime history of this country” during the pandemic.
“I do not discount the states’ concerns about what is happening at the border, but ‘the current border crisis is not a COVID crisis,'” Gorsuch said.
“Many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it,” he wrote. “One lesson might be this: Fear and the desire for safety are powerful forces….We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree.”
Contributing: Michael Collins
