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SCOTUS Temporarily Leaves Title 42 in Place


In Arizona et al. v. Alejandro Mayorkas et al., the U.S. Supreme Court agreed to keep the federal government’s Title 42 policy in place while legal challenges continue. By a vote of 5-4, the justices stayed a lower court decision that would have lifted the policy on December 21, 2022. The Court treated the application for stay as a writ of certiorari and agreed to consider whether nineteen Republican-led states should be allowed to intervene in the suit to defend Title 42.

Facts of the Case

In response to the then-emerging COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) issued an Interim Final Rule providing that it could prohibit the “introduction into the United States of persons” from foreign countries. The CDC subsequently issued an order under Title 42 directing the “immediate suspension of the introduction” of certain persons, referred to as “covered aliens.” The term is defined as those seeking to enter the United States through Canada or Mexico who “seek[] to enter … [ports of entry] who do not have proper travel documents, aliens whose entry is otherwise contrary to law, and aliens who are apprehended near the border seeking to unlawfully enter the United States between [ports of entry].”

On January 12, 2021, the plaintiffs, who purportedly are subject to expulsion under Title 42, filed the underlying suit in the district court, alleging the Title 42 System violates various statutory provisions and the Administrative Procedures Act (APA). The district court held that the Title 42 orders were arbitrary and capricious, vacated them, and enjoined their operation. Arizona and 18 other States moved to intervene to challenge the district court’s ruling, arguing that the federal government would not defend the Title 42 orders as vigorously as they might. The D.C. Circuit Court of Appeals denied the States’ motion.

Supreme Court’s Decision

In an unsigned order, a five-member majority of the Court granted the stay pending appeal. The Court directed the parties to brief and argue the following question: “Whether the State applicants may intervene to challenge the District Court’s summary judgment order.”

The Order emphasized that the Court’s review on certiorari is limited to the question of intervention. “While the underlying merits of the District Court’s summary judgment order are pertinent to that analysis, the Court does not grant review of those merits, which have not yet been addressed by the Court of Appeals,” the majority wrote.

Neil Gorsuch, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson all dissented. Justice Gorsuch wrote an opinion, which was joined by Justice Jackson.

While Justice Gorsuch wrote that he did “not discount the States’ concerns,”he argued that the current border crisis is unrelated to COVID-19. “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. The Court is scheduled to hear oral arguments in the February argument session, with a decision before the term ends in June.


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