Supreme Court Cancels Arguments in Title 42 Immigration Case

WASHINGTON — The Supreme Court on Thursday canceled arguments in a challenge to ending a pandemic-era immigration measure, a step that suggested it may dismiss the case based on the Biden administration’s announcement that the health emergency would end in May.

The justices had been scheduled to hear arguments over the measure, known as Title 42, on March 1. A terse entry on the court’s docket on Thursday announced that the case had been removed from the calendar and gave no further explanation.

The development followed a brief filed last week by Solicitor General Elizabeth B. Prelogar, a lawyer for the administration, saying the case would soon be moot.

“Absent other relevant developments, the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot this case,” Ms. Prelogar wrote.

The court’s action on Thursday indicated that it was inclined to agree and that, barring other developments, it would dismiss the case and lift a stay that had kept the measure in place.

Title 42 has allowed even migrants who might otherwise qualify for asylum to be swiftly expelled at the southern border. The policy, introduced by the Trump administration in March 2020, has been used to expel migrants — including many asylum seekers — about 2.5 million times.

Humanitarian organizations have said the policy prevents migrants fleeing violence and persecution from obtaining a safe harbor required by U.S. and international law, but border officials said they feared that its demise could fuel a surge in illegal crossings along the already overwhelmed border.

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The administration has acknowledged that ending Title 42 would have consequences.

“The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings,” Ms. Prelogar told the justices in December. “The government in no way seeks to minimize the seriousness of that problem. But the solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification.”

In the brief filed last week, Ms. Prelogar wrote that the justification would evaporate entirely in two months. “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,” she wrote.

The Supreme Court in December blocked a trial judge’s ruling that would have lifted the measure. That was a provisional victory for the 19 mostly Republican-led states that had sought to keep Title 42 in place, saying that states often must bear the brunt of the effects from a surge in border crossings.

“The failure to grant a stay will cause a crisis of unprecedented proportions at the border,” lawyers for the states wrote in an emergency application, adding that “daily illegal crossings may more than double.”

In agreeing to hear the case, the Supreme Court said it would address only the question of whether the states that had sought the stay could pursue their challenge to the measure. Ms. Prelogar wrote that “the mooting of the underlying case would also moot petitioners’ attempt to intervene.”

The court was closely divided on the decision of whether to grant a stay. Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Ketanji Brown Jackson dissented.

Justice Gorsuch, in a dissent joined by Justice Jackson, wrote that the court had effectively taken an incorrect position, at least temporarily, on the larger issue in the case: whether the coronavirus pandemic justified the immigration measure. The Centers for Disease Control and Prevention had initially adopted the policy to prevent cross-border transmission of the disease, a policy the agency has since said is no longer medically necessary.

“The current border crisis is not a Covid crisis,” Justice Gorsuch wrote. “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.”

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