Supreme Court Justices Neil Gorsuch and Ketanji Brown Jackson made an unlikely team on Tuesday by issuing a dissent against the majority’s opinion to indefinitely keep Title 42 in place while the high court considers an argument from 19 mostly Republican-led states.
Those states challenged a district court’s ruling last month that would vacate Title 42, which was enacted by the Trump administration in March 2020 to allow officials to expel migrants on public health grounds.
Gorsuch, a Trump appointee, wrote the dissent and was joined by Jackson, who President Biden nominated earlier this year.
The two justices argued the Biden administration and Congress have failed to address adequately the immigration crisis that is likely coming after Title 42 is vacated, but wrote that it is not the Supreme Court’s job to issue policies where elected leaders fail.
“The only means left to mitigate the crisis, the States suggest, is an order from this Court directing the federal government to continue its COVID-era Title 42 policies as long as possible—at the very least during the pendency of our review,” Gorsuch wrote.
“For my part, I do not discount the States’ concerns. Even the federal government acknowledges ‘that the end of the Title 42 orders will likely have disruptive consequences,'” he continued in the dissent. “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.”
Justices Sonia Sotomayor and Elena Kagan said they would also deny the application, but did not sign on to Gorsuch’s dissent.
The other five justices – John Roberts, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett and Clarence Thomas – agreed to hear the challenge from the states during the February 2023 argument session.
Republicans and some Democrats have harshly criticized the Biden administration for failing to prepare adequately for the end of Title 42.
Texas Gov. Greg Abbott, who has been bussing migrants from border communities to cities in the northeast, wrote in a letter to Biden last week that the “terrible crisis” at the border is a “catastrophe of your own making.”
“The need to address this crisis is not the job of border states like Texas,” Abbott wrote on Dec. 20. “Instead, the U.S. Constitution dictates that it is your job, Mr. President, to defend the borders of our country, regulate our nation’s immigration, and manage those who seek refuge here.”
As Gorsuch noted, even the federal government admits that ending the policy could exacerbate an already untenable border crisis.
“The government in no way seeks to minimize the seriousness of that problem,” the Department of Justice wrote in opposition to the stay on Title 42 last week.
The Biden administration, meanwhile, said Tuesday that it will comply with the order while it prepares for the end of Title 42.
“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,” White House press secretary Karine Jean-Pierre said in a statement.