Supreme Court discards Title 42 case as moot

The Supreme Court on Thursday dismissed a case concerning Title 42 as moot, days after the policy ended along with other pandemic emergency measures.

The judicial death knell of the controversial border policy was foreshadowed in February by Solicitor General Elizabeth Prelogar, the administration’s litigator for the case, when she wrote “absent other relevant developments” the end of the emergency would moot the case.

Justice Neil Gorsuch agreed, writing a blow-by-blow account of the litigation around Title 42 and the whiplash of lawsuits and competing injunctions that fed the case.

“This case concerns the ‘Title 42 orders,'” wrote Gorsuch. “Those emergency decrees severely restricted immigration to this country for the ostensible purpose of preventing the spread of COVID-19. The federal government began issuing the orders in March 2020 and continued issuing them until April 2022, when officials decided they were no longer necessary.”

“If that seems reasonable enough, events soon took a turn.”

Associate Justice Neil Gorsuch joins other members of the Supreme Court as they pose for a new group portrait, at the Supreme Court building in Washington on Oct. 7, 2022.

Litigation against and in defense of Title 42 pitted immigrant advocates against a group of Republican state attorneys general, with lawsuits filed in Louisiana and the District of Columbia, either seeking to perpetuate or nix the policy.

The Supreme Court last ruled on Title 42 in December, saying the policy should remain in place until its final review of the matter, which never came because it ended May 11.

At the time, the continuation of the policy was seen as a victory for Republican states and for the Biden administration, which had warned the end of Title 42 would bring an unmanageable number of asylum seekers to the border.

The lead-up to Title 42’s sunset on May 11 came with a significant increase in the number of migrants crossing the U.S.-Mexico border, but that number dropped precipitously with the end of the policy.

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More Title 42 coverage from The Hill:

• Latest border figures show 56 percent drop in encounters following lift of Title 42
• Title 42 mania undercut by drop in encounters
• Andrew Cuomo on border post-Title 42: ‘It’s going to get worse before it gets better’
• With end of Title 42, left and right eye limits on asylum

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While tens of thousands of migrants, many of whom are potential asylum-seekers, remain camped at the border, the return to regular border processing is likely one factor in the decreased number of crossings.

Under the regular border management statute known as Title 8 and the Biden administration’s new asylum rules, migrants risk criminal prosecution if they are caught crossing the border without authorization more than once, and they face a five-year bar from entering the United States if their asylum cases are not adjudicated.

Under Title 42, border officials could immediately expel migrants encountered, without granting them their right to claim asylum and without producing a paper trail of the interaction.

The lack of a paper trail led to recidivism in border crossings because there were few consequences for multiple attempts.

The policy was nominally a sanitary protection during the pandemic, but it was widely seen as an attempt to gut asylum by the Trump administration.

Gorsuch dissented from the majority in December’s ruling that kept the policy alive, writing “even if the States manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed.”

At the time, Justice Ketanji Brown Jackson joined Gorsuch’s dissent; Thursday, Jackson dissented from Gorsuch’s opinion on a technicality.

Gorsuch’s decision rendered the case moot, but Jackson would have dismissed it as improvidently granted, meaning the Court should have never taken on the case.

Zach Schonfeld contributed