Asylum policy dispute thrown out by Supreme Court

WASHINGTON (CN) — After pausing the Biden administration’s actions on a controversial asylum policy for months, the Supreme Court on Thursday ordered the dismissal of a suit aimed at upholding Title 42 despite the waning Covid-19 emergency. 

The action comes after the justices took the case challenging the Biden administration’s unraveling of Title 42 off their argument schedule with no explanation in February. The Trump-era policy was installed in early 2020 to restrict asylum requests during the Covid-19 pandemic. As a result, migrants have been forced into a holding pattern at the border waiting to be let into the U.S. 

Thursday’s order dismisses the pause and sends the case back to the D.C. Circuit with instructions to dismiss the case. Justice Ketanji Brown Jackson was the sole dissent to the order, saying she would have dismissed the writ of certiorari as improvidently granted. 

Justice Niel Gorsuch issued a statement accompanying the order, saying the court’s action works to correct a wrong. 

“The 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,” the Trump appointee wrote. “Today’s dismissal goes some way to correcting that error.” 

Gorsuch said the history of the case is an example of the ills that come when district courts award nationwide relief. 

“Even more importantly, the history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed,” Gorsuch wrote. 

March 2020, Gorsuch claims, marked “the greatest intrusions on civil liberties in the peacetime history of this country." He noted the pandemic-era lockdowns and other emergency authorities invoked by executive offices. Legislative inaction on these issues, Gorsuch said, endangered freedoms. 

“Of course, this is no new story,” Gorsuch wrote. “Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.”

Title 42 was lifted last Thursday as the Covid-19 national emergency came to an end. Politicians on both sides of the aisle have warned ending Title 42 could put a strain on already stressed resources at the border. The suit at issue here was initiated by several Republican-led states who sued the Biden administration in an effort to block Title 42’s dissolution. 

Migrants waiting at the U.S.-Mexico border have faced increased violence while also struggling to obtain medical care, food and housing, according to Human Rights First. In just a year and a half of Title 42’s use, the group documented over 10,300 cases of murder, rape, kidnapping, torture and other violent acts. 

Immigration advocates have rallied against the policy since its implementation, arguing former President Donald Trump had misused public laws when implementing Title 42. The policy was shot down by a federal judge after the advocates filed a suit against the Trump administration. With Biden now heading the executive, the administration announced it would not challenge the lower court ruling.

Finding this action unacceptable, 19 Republican-led states attempted to intervene in the suit. The states’ emergency request was declined by the D.C. Circuit but taken up by the Supreme Court. Chief Justice John Roberts paused the lower court ruling and a slim majority of the justices then agreed to hear arguments in the dispute. However, the court said it would only consider if the states could intervene in the suit, not the merits of the Title 42 arguments. 

The Biden administration then announced an official end to the Covid-19 public health emergency. This led U.S. Solicitor General Elizabeth Prelogar to tell the justices the case before them may be moot come May. 

“The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render this case moot: Because the Title 42 order would have ‘expired by its own terms,’ this suit seeking only prospective relief would ‘no longer present[] a ‘live case or controversy,'" Prelogar wrote in a brief to the court. 

While advocating for an end to Title 42 at the Supreme Court, however, the Biden administration also broadened its use in a diplomatic agreement with Mexico at the beginning of the year. Title 42 did not initially apply to migrants from Cuba, Haiti, and Nicaragua, but Biden came to an agreement to send 30,000 asylum seekers from these countries back to Mexico each month. 

Title 42’s end will leave the administration to fall back on normal processing procedures under the Immigration and Nationality Act. Immigration experts have already questioned the legality of Biden’s agreement with Mexico under Title 8. 

Follow @KelseyReichmann

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