'Not policymakers of last resort': Neil Gorsuch issues blistering dissent in Supreme Court Title 42 ruling

On Tuesday, the Supreme Court ruled that enforcement of the regulation that prohibits the entry of migrants into the country during a public health emergency, known colloquially as "Title 42," must remain in place at least until the court hears arguments next February. The ruling is a victory for several Republican state attorneys general, who sued to prevent the enforcement from lapsing earlier this month, claiming that the free flow of migrants into their states would cause serious harm.

The unsigned decision came down mostly along party lines between the justices appointed by Democratic and Republican presidents. But one of the six right-wing justices — Trump appointee Neil Gorsuch — fiercely dissented, arguing that the court had no business ordering the policy to remain in place just because Republicans want President Joe Biden to do so.

"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," wrote Gorsuch. "We are a court of law, not policymakers of last resort."

Generally, migrants who lawfully present themselves at the border and request asylum are legally allowed to remain in the United States pending a hearing of their case before an immigration judge. However, in 2020, former President Donald Trump enacted the emergency restriction during the COVID-19 pandemic. The regulation has remained in place, keeping over 2 million people from entering the country, even after vaccines became widely available and even as the administration and courts have ended nearly all other emergency measures taken to prevent the spread of the virus.

The Biden administration itself was ordered by a lower court in Washington, D.C. to end the policy, after the judge found the policy was not implemented properly in the first place, in accordance with administrative procedure.

The Supreme Court's decision, noted Bloomberg homeland security reporter Ellen Gilmer, doesn't necessarily prohibit the Biden administration from ending the Title 42 policy, but would need to comply with a prior ruling by the far-right Court of Appeals for the Fifth Circuit, that found defects in a previous attempt to end the policy.