The Supreme Court Speaks, and Title 42 Lives Another Day

The Supreme Court ruled 5-4 Tuesday, Dec. 27, to delay the end of the Title 42 pandemic border restriction just a little bit longer. And so, the policy lives another day, saved once again just before the clock runs out. The next existential crisis for the controversial order will be the February argument session, when the Court will decide whether the 19 states that oppose the policy should be allowed to intervene. It has been a turbulent ride since the Trump administration first implemented the Title 42 order in 2020, punctuated with chaos and confusion at the border. But the drawn-out, and thus far failed, attempts to end it raise a question: Can this emergency powers genie ever be put back in the bottle?

The Supreme Court Speaks

Chief Justice John Roberts, who had previously paused the December 21 expiration by granting a temporary injunction Monday, December 19, was joined by Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett in deciding to give the states’ case a chance to be heard in February. Justices Sonia Sotomayor and Elena Kagan, however, voted to deny the application, and Justices Neil Gorsuch and Ketanji Brown Jackson dissented, arguing that, even if the Title 42 orders were lawfully adopted, the emergency on which they were premised has long since lapsed.

The Biden administration has been trying to end the pandemic border protection policy since April, but Republicans have pushed to maintain it. In November, Federal District Judge Emmet Sullivan ruled the order was unlawful and set it to expire on December 21. Chief Justice Roberts’ December 19 stay was pushing that deadline, giving the federal government a day to respond. The White House’s response – that Title 42 should be allowed to end, but not until after Christmas – is what extended it out to December 27, when – at the last moment once again – the Supreme Court intervened.

Neither the majority nor the two who simply said they would oppose taking up the case explained their positions, but Justice Gorsuch did, in his dissent, make his reasons known. “The current border crisis is not a COVID crisis,” he wrote. “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.” At this point, a decision won’t come until the February session at the earliest – and it could be much later. Even if Title 42 is allowed to expire, it could be quite some time yet. The Biden administration has acknowledged and promised to abide by the ruling. When arguments are heard, the Court will be deciding the intervention issue – not whether the Title 42 rule is lawful.

That the conservative majority on the Court would result in the merits of the case against ending the Title 42 order being discussed in the February oral argument session is no great shock. But it does demonstrate that the executive order – implemented at the will of the president and, one might presume based on the nature of such policies, terminated by the same method – has taken on a life of its own beyond the president’s prerogative.

The Letter of the Law and Presidential Power

The bit of 42 USC used to justify the initial COVID-era immigration restrictions states:

“Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.”

The states suing to maintain the Title 42 orders argue that ending the policy would create a “crisis of unprecedented proportions.” That it has allowed Border Patrol to turn people away was never up for dispute – it has been a useful tool, and both the Trump administration and Biden’s have wielded it willingly. But it was pulled from the toolbox and put into use by executive action, without any consent from Congress or the courts required or requested. Now, however, when a president wants to put it away, various courts stand in the way.

This wouldn’t be the first time an executive order grew beyond the executive’s power. Donald Trump fought his entire presidency to end Barack Obama’s DACA policy – only to find that it had taken on a life of its own. It now seems the Trump-era pandemic policy has done the same. And that’s the risk of grasping at emergency powers. Sometimes the genie simply can’t be put back in the bottle.