Cast your mind back to March 2020. 

Fear of COVID-19 tore around the world. Towns, cities and states took never-before-seen measures to “stop the spread” – a slogan that was just coming into being. When it came to attempts to limit transmission of the virus in those first few weeks, nothing was off the table.

In the United States, the Trump administration moved quickly that month to make a number of sweeping decisions in the name of public health. 

Among them was an order that allowed asylum seekers to be summarily turned away at the border. With a fresh interpretation of a section of U.S. public health code dating to 1944, border agents were empowered to expel hundreds of thousands of migrants before they could seek asylum. The text of the relevant section refers to “the introduction, transmission or spread of communicable disease.”

What started as a self-serving, opportunistic measure has descended into an appalling legal fight over inbound migration. 

The Supreme Court’s decision Tuesday did nothing to clear up the mess; in a 5-4 vote, the justices approved a bid by 19 Republican-led states to block the termination of Title 42. 


In doing so, the court has allowed an indefinite continuation of the order; and the indefinite denial of due process to asylum seekers at U.S. borders. The right to seek asylum is a human right under the United Nations’ Universal Declaration of Human Rights – apparently this needs repeating.

The earliest lawsuit over this use of Title 42 was filed in 2020; the American Civil Liberties Union and four other immigration advocates came together to sue the Trump administration over the application of the order to unaccompanied children. 

We know more than enough about how flawed Title 42 is. By October of 2020, the public learned that experts at the CDC – the body tasked with invoking the order – opposed the move, saying there was no good reason for it (they were overruled by then Vice President Pence).

Despite the high anxiety at the time the order was cooked up, concern about its validity swirled. In a letter to the CDC shortly after the decision, Dr. Anthony So, an expert at Johns Hopkins Bloomberg School of Public Health, said the policy was based on neither evidence nor science. 

“This order directly endangers tens of thousands of lives and threatens to amplify dangerous anti-immigrant sentiment and xenophobia,” So wrote in his letter. Almost three years on, we see he was right.

The result of Title 42 is an inhumane arrangement that victimizes people who have already been through more danger and horror than the average American will ever know. It is being wielded by the wrong people for the wrong reasons.


The eventual reversal of the policy must not be carried out alone; the next Congress has a responsibility to pass comprehensive and sophisticated immigration reform. This unedifying fight lays bare the failure to respond appropriately until now.

As part of his dissenting opinion Tuesday, noting that the risk of virus spread of March 2020 had “long since lapsed,” Justice Neil Gorsuch wrote: 

“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.”

The technical fact of the matter is that if the pandemic was the given reason for this policy, it is no longer. The Supreme Court is in the wrong here and thousands of people will suffer as a result.

If you won’t take our word for it, take Gorsuch’s.

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