Arizona v. Mayorkas
The Court paused a lower court's order that had struck down Title 42 — the pandemic-era policy used to quickly turn away migrants at the border — and agreed to take up the narrow question of whether states can join the lawsuit to defend the policy themselves.
The decision kept Title 42 restrictions in place at the border while the Court considers the procedural question, though it explicitly did not rule on whether the policy itself was ever lawful.
How it got here: A district court vacated Title 42 immigration orders; the D.C. Circuit denied state intervention on appeal; states applied to the Supreme Court for a stay and expedited review.
The Case in Depth
What happened
During the COVID-19 pandemic, the Centers for Disease Control and Prevention issued a series of orders — known as "Title 42 orders" — allowing the government to rapidly turn away migrants at the border to prevent the spread of disease. Arizona and other border states relied on those restrictions to manage immigration. A federal district court ruled the orders were arbitrary and unlawfully issued, and vacated them. The states sought to intervene to appeal that ruling, arguing the federal government would not fight hard enough to keep the restrictions in place.
The question before the Court
Should states be allowed to intervene in a federal lawsuit and defend a pandemic-era immigration policy when the federal government chose not to appeal a court ruling against it?
The Court's answer
The Court stepped in to pause the district court's ruling and agreed to hear the states' challenge — but only on a narrow procedural question: whether the states have the legal right to join the lawsuit in the first place. The Court found that question worthy of expedited review and halted the district court's order vacating Title 42 while that question is considered.
The stay itself does not force the federal government to keep enforcing Title 42; it simply prevents the district court's order from taking legal effect. The Court explicitly declined to review whether Title 42 was lawfully issued — that underlying question remains for the lower courts, and the Court's review is limited solely to the intervention issue.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Migrants at the southern border continued to face expedited removal under pandemic-era rules while the case proceeded. The case also set up a significant question about states' power to intervene in federal immigration lawsuits when they believe the federal government won't vigorously defend a policy they rely on.
What changes now
The stay kept Title 42 restrictions legally in force while the Court prepared to hear argument in February 2023 on the intervention question only. Whether the states have the right to step into the lawsuit and defend the Title 42 orders would be decided then. The underlying question of whether Title 42 was lawfully issued was left for the lower courts and was not before the Supreme Court.
What this does not decide
The Court explicitly did not rule on whether the Title 42 immigration orders were lawfully issued or whether the district court was right to vacate them. It also did not require the federal government to enforce Title 42 — the stay only suspended the district court's order. The intervention question is all the Court agreed to decide.
Concurrences and dissents
Dissent — Justice Gorsuch
Justice Gorsuch, joined by Justice Jackson, argued that expedited review of the intervention ruling was unwarranted because Title 42 itself was premised on a COVID emergency that had already ended. He warned that the Court was effectively being used to keep a defunct pandemic policy alive to address a different crisis — a border situation Congress and the executive had failed to resolve — and that courts should not serve as policymakers of last resort. Justices Sotomayor and Kagan also would have denied the application but did not write separately.
How the Court got there
The legal reasoning, step by step
- The Court treated the application for a stay as a petition for certiorari and granted both — an unusual procedural move that placed the case on an accelerated briefing and argument schedule for February 2023.
- The Court's certiorari grant is limited to a single question: whether the states may intervene to challenge the district court's ruling. The Court explicitly declined to grant review of the underlying merits of whether the Title 42 orders were lawfully issued, noting those merits had not yet been addressed by the court of appeals.
- The stay blocks the district court's order from taking effect — meaning Title 42 restrictions could not legally be unwound — but the Court clarified the stay does not itself obligate the federal government to enforce Title 42 in any particular way.
- The stay terminates automatically when the Supreme Court sends down its final judgment, and the earlier stay entered by the Chief Justice alone was vacated and replaced by this Court-wide order.