Title 42 orders, as the public health measures implemented by the Centers for Disease Control and Prevention (CDC) during the pandemic are known, permit federal border enforcement officials to turn away migrants arriving at the border without the customary procedural hurdles. Issued during the Trump administration, they were grounded in statutory restrictions on immigration where it posed a “serious danger” of a “communicable disease.” Of course, they are also a tool serving the broader goal of protecting the border.

Border security as a general matter has broken down, with decades of legislative inaction and the Biden administration’s abdication of responsibility giving rise to a crisis of unprecedented numbers. According to the Department of Homeland Security, illegal border crossings, now at around 7,000 per day, may more than double to 15,000 per day if Title 42 is terminated. In addition to facing overcrowding, individual states will face costs of healthcare reimbursements and education services that cannot be recovered. Such factors were found to be the basis for standing in a federal case in Louisiana in which two dozen states were successful in securing a preliminary injunction against the CDC’s attempt to terminate Title 42.

In another action, nineteen states filed a motion in the D.C. Circuit to intervene to challenge a district court ruling that held the Title 42 orders to be arbitrary and capricious and enjoined their enforcement. The appeals court denied the motion, and the states then went to the Supreme Court, which stayed the district court’s order and agreed to hear the question of whether the states could intervene.

The Supreme Court’s brief order was the product of a 5–4 vote, with Justice Gorsuch writing a two-page dissent joined by Justice Ketanji Brown Jackson. Justices Sonia Sotomayor and Elena Kagan dissented without opinion. Gorsuch’s opinion was widely noted for observing that “the public-health justification undergirding Title 42 orders has lapsed” and asserting that “the current border crisis is not a COVID crisis.”

Whether or not the Title 42 context has become stale, as Gorsuch maintains, the issue of state intervention is inherently important to our system of federalism. Many areas of federal regulation have a clear impact upon states, including in some contexts in which the federal government chooses not to exercise its authority. In Massachusetts v. Environmental Protection Agency (2007), which involved a petition to the EPA to regulate greenhouse gases, the Court gave Massachusetts “special solicitude in our standing analysis,” noting the state’s “stake in protecting its quasi-sovereign interests.”

In recent cases, the Court has permitted parties to intervene as representatives of their states. Just last year, the Court allowed Kentucky’s attorney general to intervene to defend the state’s law regulating dilation and evacuation abortions after another state official stopped defending it (Cameron v. EMW Women’s Surgical Center). The Court took note of “the weighty interest that a State has in protecting its own laws.” It later invoked that interest in allowing North Carolina’s legislative leaders to intervene to defend the state’s voter ID law (Berger v. North Carolina State Conference of the NAACP).

Those two cases involved constitutional challenges to state laws. It has been more difficult for states to intervene in cases involving challenges to executive branch measures late in the Trump administration when those lawsuits dissipated after the arrival of the Biden administration. A notable tactic was for the new administration, typically rejecting its predecessor and thus no longer adverse to plaintiffs who had sued during the Trump administration, to turn a lawsuit into a consent decree that effectively gave the plaintiffs what they wanted. These effectively amounted to rules changes that were undertaken without following the Administrative Procedure Act’s notice and comment requirements for revisions to federal regulations.

That tactic was employed last year in Arizona v. City and County of San Francisco, which involved a challenge to the Trump administration’s rule for determining whether an applicant for admission was likely to become a public charge. The federal government successfully opposed the effort of thirteen states to intervene to defend the rule. The Court ultimately declined to decide the case on its merits because of other issues potentially involved, but a four-justice concurrence written by Chief Justice John Roberts conveyed the importance of the question of state intervention in the face of such tactics.

Now the Court will have the chance to decide a similar question, raised in the context of Title 42. Oral argument in this case, Arizona v. Mayorkas, is scheduled for March 1. Hopefully the justices will follow the reasoning of recent cases and vindicate the ability of states to protect their interests against what are too often the whims of the federal administrative state.