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Supreme Court brushes aside issue on border policy challenge

Republican-led states had sought to defend in a Washington lawsuit the so-called Title 42 policy, which has now ended

The Supreme Court building is seen on May 3.
The Supreme Court building is seen on May 3. (Celal Gunes/Anadolu Agency via Getty Images)

The Supreme Court on Thursday ordered that a request by Republican officials to join litigation over pandemic-era asylum restrictions be dismissed, one week after the contested border policy was lifted.

The high court order comes in a case brought by Republican-led states, which had asked to join a legal challenge in Washington against the so-called Title 42 border policy to defend it. This policy, which ended on May 11 after more than three years in place, allowed border agents to expel migrants without a hearing under a public health rationale.

In a statement accompanying the order, Justice Neil M. Gorsuch wrote that the end of the Title 42 policy was enough to convince the high court that the restrictions “are now as good as gone and any dispute over them is moot.”

Gorsuch also lamented that the Title 42 order, issued in response to the COVID-19 pandemic, was kept in place by the courts as long as it was.

“Rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow,” Gorsuch wrote.

The order vacates a lower court decision that prevented the states from joining the legal challenge. Justice Ketanji Brown Jackson dissented from that and would have tossed the case as improperly granted in the first place, the order states.

The order follows a lengthy legal saga over the border policy, which was used to authorize millions of expulsions of asylum-seekers while in effect.

Following a challenge by immigrant rights advocates, a federal judge in Washington ruled last year that the Title 42 border policy was illegal and ordered the Biden administration to stop implementing it.

Dissatisfied with the administration’s response to that ruling, a group of Republican-led states tried to intervene in the case and defend the Title 42 rule in the government’s stead.

Lower courts rejected the states’ request to join the case. But in December, the Supreme Court agreed to pause the effect of the Washington court’s Title 42 ruling and to consider whether the states should be permitted to intervene in the litigation. That decision preserved the border restrictions for months longer.

Gorsuch, in dissenting from that December decision, had taken issue with the states’ contention that the Title 42 policy, despite having been intended as a public health measure, should be preserved to avoid a border crisis.

“But the current border crisis is not a COVID crisis,” Gorsuch wrote at the time. “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.”

Gorsuch’s Thursday statement echoes some of the concerns he raised in his December dissent.

The Trump-appointed justice wrote that the high court “took a serious misstep when it effectively allowed nonparties to this case to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one.”

“Today’s dismissal goes some way to correcting that error,” he said.

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