supreme court
Arizona Prevails: Supreme Court Orders Border Expulsion Policy Remain In Place

December 28, 2022

By Corinne Murdock |

On Tuesday, Arizona succeeded in its effort to continue Title 42, a Trump-era activation of the policy enabling the rapid expulsion of illegal immigrants.

The Supreme Court (SCOTUS) on Tuesday blocked the D.C. District Court ruling last month ordering the Biden administration to lift Title 42 by Dec. 21. The policy will remain in place pending a hearing before the court on the question of whether states, including Arizona, may intervene to challenge the district court’s order.

Judge Emmet Sullivan, a Bush appointee, asserted that Trump’s initial implementation of Title 42 was unlawful. Although the Biden administration benefitted from the ruling, they appealed on Sullivan’s judgment of Trump’s use of Title 42. 

Attorney General Mark Brnovich, who championed legal efforts to continue Title 42, said in a press release that this decision would ensure Americans’ safety where the Biden administration wouldn’t. Brnovich noted that Title 42 under the Biden and Trump administrations resulted in the expulsion of over 2.4 million immigrants. 

“It’s disappointing [that] the Biden administration is willing to sacrifice the safety of American families for political purposes,” said Brnovich. 


SCOTUS will fast-track the case for oral argument during its February session (Feb. 21 to March 1). Arizona and 18 other states petitioned SCOTUS last Monday to keep Title 42 in place, after the D.C. District Court denied their intervention. 

One conservative-leaning justice, Neil Gorsuch, joined the liberal court’s opposition. Gorsuch wrote in his dissent, joined by Justice Ketanji Brown Jackson, that Title 42 should be done away with since the border crisis doesn’t quality as a “COVID crisis.” Justices Sonia Sotomayor and Elena Kagan also opposed the order, but didn’t join in Gorsuch’s dissent. 

“[T]he emergency on which those orders were premised has long since lapsed,” wrote Gorsuch. “[The states] do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed.”

Gorsuch rejected Arizona and the other states’ arguments that Title 42 should remain untouched since it was their only means of securing the border. He clarified that he found the states’ concerns about the border crisis valid, but repeated that Title 42 was meant only to curtail communicable diseases, not the other issues stemming from an unsecured border.

“[C]ourts 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,” wrote Gorsuch. 


Title 42 of the Public Health Services Act has existed since 1944. The policy enables the Centers for Disease Control and Prevention the power to block illegal immigration into the U.S. to protect Americans from contagious diseases. This policy even applies to asylum seekers. Former President Donald Trump utilized the policy at the start of the COVID-19 pandemic.

A federal judge blocked the Biden administration from lifting Title 42 in May. However, requirements to keep the policy in place have curbed the border crisis little, with reports revealing that the Biden administration covertly subverts the policy regardless of court orders and public promises earlier this year. 

Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to

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