By Kate Scanlon | OSV News
WASHINGTON (OSV News) — The U.S. Supreme Court ruled Dec. 27 that Title 42, a federal public health rule permitting immigration officials at the border to bar migrants seeking asylum from entry, would remain in effect until the high court hears legal challenges over the policy.
The court’s announcement in Arizona v. Mayorkas has been criticized by some Catholic groups, including the U.S. Conference of Catholic Bishops, which has argued it harms migrants and is a temporary measure ill-suited for permanent immigration policy.
Title 42 is a part of federal U.S. public health law granting the federal government some authority to implement emergency action to prevent the spread of contagious diseases by barring some individuals from entry.
Then-President Donald Trump implemented the policy in 2020 at the onset of the COVID-19 pandemic, but the move was seen as part of his broader attempts to reduce migration. The move was criticized by some public health experts, who argued it was politically motivated rather than evidence-based.
Since then, Title 42 has been invoked 2.5 million times to expel migrants, including those seeking asylum, according to U.S. Customs and Border Protection data.
The Biden administration has attempted to lift the Title 42 policy, but it has been blocked by federal judges from doing so after 19 Republican state attorneys general filed suit to keep it in place.
In a 5-4 decision, the Supreme Court declared the Title 42 policy would remain in effect until they could hear the case.
Supreme Court Justice Neil Gorsuch notably sided with the high court’s three liberal-leaning justices to argue the policy should not be left in place. In his dissent, joined by Justice Ketanji Brown Jackson, Gorsuch wrote, “The current border crisis is not a COVID crisis.
“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,” he wrote. “We are a court of law, not policymakers of last resort.”
White House press secretary Karine Jean-Pierre said in a Dec. 27 statement that the Biden administration would comply with the ruling while making “preparations to manage the border in a secure, orderly and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration.”
“Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely,” Jean-Pierre said.
The Catholic Church teaches in its catechism that while a country has the right to regulate its borders for the sake of the common good, more prosperous countries “are obliged, to the extent they are able, to welcome the foreigner in search of the security and the means of livelihood which he cannot find in his country of origin” (No. 2241).
The U.S. Conference of Catholic Bishops has called for an end to what it called the “misuse” of Title 42. In an April 2022 letter to congressional leadership, USCCB and Catholic Charities USA representatives said that “Policies such as Title 42 … all too often deny the reality of forced migration, disregard the responsibilities enshrined in domestic and international law, and undermine the vulnerability of those against whom they are applied. These are not hallmarks of a ‘fair, orderly, and humane’ immigration system.”
Dylan Corbett, the executive director of Hope Border Institute, a group that says it brings the perspective of Catholic social teaching to immigration policy, said in a statement that the high court’s action on Title 42 is “plain wrong.”
“This decision will put lives in danger and will incentivize smuggling, trafficking [and] violence against migrants,” Corbett said. He added that in the meantime, “border communities and faith-based organizations will continue picking up the pieces of a broken immigration system, showing that another way is possible — one of generous welcome, hospitality, humanity and compassion.”
Proponents of the policy, such as Texas Attorney General Ken Paxton, applauded the court’s move, describing it as a matter of public safety.
“Today, SCOTUS handed Texas and the USA a huge victory by allowing Title 42 to remain in place after Biden illegally tried to terminate this critical policy,” Paxton wrote on Twitter Dec. 27. “I will continue to fight at every turn and do everything in my power to help secure our border and keep Texans safe.”
The Supreme Court is expected to hear oral arguments in Arizona v. Mayorkas in late February to early March. A decision could come as late as June.