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_________________ 1 Cite as: 598 U. S. ____ (2022)



## SUPREME COURT OF THE UNITED STATES

No. 22A544 (22–592)

ARIZONA, ET AL

. v. ALEJANDRO MAYORKAS, SECRETARY OF HOMELAND SECURITY

ON APPLICATION FOR STAY
[December 27, 2022]
The application for stay pending certiorari presented to T HE C HIEF J USTICE and by him referred to the Court is granted. The November 15, 2022 order of the United States District Court for the District of Columbia, case No. 1:21– cv–00100, is hereby stayed. Applicants suggested this Court treat the application as a petition for a writ of certio

rari; doing so, the petition is granted. The parties are di

rected to brief and argue the following question: Whether the State applicants may intervene to challenge the District Court’s summary judgment order. This stay precludes giving effect to the District Court or

der setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy. The Court’s review on certiorari is limited to the question of intervention. While the underlying merits of the District Court’s sum

mary judgment order are pertinent to that analysis, the Court does not grant review of those merits, which have not yet been addressed by the Court of Appeals. The Clerk is directed to establish a briefing schedule that will allow the case to be argued in the February 2023 argu

ment session. The stay shall terminate upon the sending down of the judgment of this Court. The order heretofore entered by T HE C HIEF J USTICE is vacated.2 ARIZONA v. MAYORKAS

G ORSUCH , J., dissenting

J USTICE S OTOMAYOR and J USTICE K AGAN would deny the application.
J USTICE G ORSUCH , with whom J USTICE J ACKSON joins, dissenting. From March 2020 to April 2022, the Centers for Disease Control and Prevention responded to the COVID–19 pan

demic by issuing a series of emergency decrees. Those de

crees—often called “Title 42 or ders”—severely restricted immigration to this country on the ground that it posed a “serious danger” of “introduc[ing]” a “communicable dis

ease.” 58 Stat. 704, 42 U. S. C. §265. Fast forward to a few weeks ago. A district court held that the Title 42 orders were arbitrary and capricious , vacated them, and enjoined their operation. On appeal, Arizona and certain other States moved to intervene to challenge the district court’s ruling, arguing that the federal government would not de

fend the Title 42 orders as vigorously as they might. The D. C. Circuit denied the States’ motion. In response, the States have now come to this Court seeking two things. First, the States ask us to grant expedited review of the D. C. Circuit’s intervention ruling. Second, the States ask us to stay the district court’s judgment while we review the D. C. Circuit’s intervention ruling. This stay would effec

tively require the federal gove rnment to continue enforcing the Title 42 orders indefinitely. Today, the Court obliges both requests. Respectfully, I believe these decisions un

wise. Reasonable minds can disagree about the merits of the D. C. Circuit’s intervention ruling. But that case-specific decision is not of special importance in its own right and would not normally warrant expedited review. The D. C. Circuit’s intervention ruling takes on whatever salience it has only because of its presence in a larger underlying dis

pute about the Title 42 orders. And on that score, it is un

clear what we might accomplish. Even if at the end of it all3 Cite as: 598 U. S. ____ (2022)

G ORSUCH , J., dissenting we find that the States are permitted to intervene, and even if the States manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed. In April 2022, the federal government terminated the Title 42 orders after determining that emergency immigration re

strictions were no longer necessary or appropriate to ad

dress COVID–19. 87 Fed. Reg. 19944. The States may question whether the government followed the right admin

istrative steps before issuing this decision (an issue on which I express no view). But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergenc y decrees that have outlived their shelf life. The only plausible reason for stepping in at this stage that I can discern has to do with the States’ second request. The States contend that they face an immigration crisis at the border and policymakers have failed to agree on ade

quate measures to address it. The only means left to miti

gate the crisis, the States suggest, is an order from this Court directing the federal go vernment to continue its COVID-era Title 42 policies as long as possible—at the very least during the pendency of our review. Today, the Court supplies just such an order. For my part, I do not discount the States’ concerns. Even the federal government acknowledges “that the end of the Title 42 orders will likely have disruptive consequences.” Brief in Opposition for Fed

eral Respondents 6. But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emer

gency only because elected offi cials have failed to address a different emergency. We are a court of law, not policymak

ers of last resort.