Justice Gorsuch Warns Supreme Court’s Title 42 Ruling Is Dangerous Business

Conservative Supreme Court Justice Neil Gorsuch sided with liberals as part of a 5-4 vote announced Tuesday delaying a trial court order that would have vacated the Title 42 policy first introduced by the Trump administration.

The COVID-era border policy, which was originally set to end this month, allows authorities to expel migrants over COVID-19 pandemic concerns. The Supreme Court’s decision allows the policy to remain in place while its termination is challenged in court.

In his dissent, Gorsuch said that “the current border crisis is not a COVID crisis.”

The pandemic, by way of this policy, previously allowed for the expulsion of would-be immigrants, but the federal government terminated such orders this past April when no longer necessary or appropriate, Gorsuch noted in his dissent, which was joined by Justice Ketanji Brown Jackson.

“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,” Gorsuch wrote. “We are a court of law, not policymakers of last resort.”

Justices Sonia Sotomayor and Elena Kagan would deny the application.

White House press secretary Karine Jean-Pierre wrote in a statement following the Supreme Court’s decision that it will comply with the order and prepare for the Court’s review, which is slated for February.

“At the same time, we are advancing our preparations to manage the border in a secure, orderly and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration,” she said. “Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.”

Supreme Court Justice Neil Gorsuch poses for an official portrait at the East Conference Room of the Supreme Court building on October 7 in Washington, D.C. He wrote the dissent in a ruling that stops the vacating of the Title 42 immigration policy that began under former President Donald Trump.
Alex Wong/Getty Images

She also said the order provides for more comprehensive immigration reform to be taken up by Congress, adding that Republicans have “plenty of time to move past political finger-pointing” to solve border challenges.

Republican Texas Governor Greg Abbott, who notoriously leads a state dealing with consistent immigration issues, previously expressed support for a previous temporary stay against ending Title 42.

“Texas and other states are insisting that the Court leave Title 42 in place,” Abbott tweeted on December 19. “Today’s order is a step in that direction. This helps prevent illegal immigration.”

West Virginia Senator Joe Manchin and Texas Representative Henry Cuellar were among Democrats who voiced their support for the pandemic-era policy to continue.

“Title 42 needs to be extended until we can get, truly, immigration reform,” Manchin said on CBSFace the Nation. “Immigration reform will not happen in our country until we come—both sides of the aisle, Democrats, Republicans and the administration—that you have to have total border security.”

Cueller, joining Manchin on that broadcast, questioned the Biden administration’s immigration policy after nearly two years in office.

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