The Supreme Court ruled on Tuesday that Title 42 can not be terminated, delivering a major blow to the Biden administration. The court will now hear a challenge brought by Republican states in February, setting up a more permanent decision on the matter.
The ruling was 5-4, with Justice Neil Gorsuch joining the liberals in his dissent. Here’s what he had to say (Fox News) on the matter.
“Even the federal government acknowledges ‘that the end of the Title 42 orders will likely have disruptive consequences,’” Justice Gorsuch wrote.
“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.”
Gorsuch’s legal argument may be correct, but eliminating Title 42 doesn’t allow there to be any redress if he’s not. Therefore, I think it makes sense to halt the termination of the provision until the case can be heard in February. There is no damage being caused by leaving it in place in the meantime, especially when the border is being overrun.
US District Court Judge Emmet Sullivan had originally ordered Title 42 to be terminated in November, ruling in favor of immigration activists. You may remember Sullivan from the Michael Flynn case where he fought the DOJ’s decision to dismiss the case in one of the most ridiculous legal spectacles in years.
The Supreme Court’s decision is a PR blow to Biden, who wants to end the policy but wants to be able to blame someone else for it. Now, with it remaining in place and things so out of control, there’s no doubt the Border Patrol will continue to make use of it for as long as possible.
Still, I do think Gorsuch’s argument may prevail in the end. The courts can’t be expected to keep provisions in place because politicians refuse to do their jobs. At some point, accountability for the border crisis has to be laid at the feet of the Democratic Party. Voters can either wake up and make that happen or a lot of people are going to continue to suffer and die.