Biden's bad year in court: Title 42 is latest in a string of major legal defeats

Several of president’s major initiatives have made their way to the highest court, where impact of Trump appointments is clear.

Published: December 27, 2022 5:04pm

Updated: December 29, 2022 5:08pm

The Supreme Court on Tuesday barred the Biden administration from ending Title 42 while the border health security policy is being litigated, the latest in a long series of major legal defeats for the government in 2022.

Several of President Joe Biden's major initiatives have made their way to the nation’s highest court, where the impact of Trump judicial appointments has become quite clear.

Here are some of the current president’s biggest legal setbacks.

Title 42 must remain in place through SCOTUS arguments

On Tuesday, the Supreme Court ordered that the COVID-19 era immigration order Title 42 remain in place pending arguments before the Supreme Court and a final ruling.

Title 42 is a COVID-19 pandemic-era immigration order that permitted border authorities to speedily deport apprehended migrants should they hail from a nation known to host a communicable disease, i.e., COVID-19. Border officials have deported an estimated 2.5 million would-be illegal migrants under this order.

U.S. District Judge Emmet Sullivan declared in November that the order was "arbitrary and capricious" after a group of asylum-seeking families sued the Department of Homeland Security over its enforcement.

Nineteen Republican attorneys general then sued to block the order's expiration, but the D.C. Circuit Court of Appeals denied their bid in late December, putting the order on track for a Dec. 21 expiration.

Last week, however, Chief Justice John Roberts imposed a temporary stay on the order's expiration after the Republican AGs appealed the appellate court's decision. The court has subsequently ordered that the government continue to enforce Title 42 in good faith until it can hear arguments in the case, which have been scheduled for February 2023. Of the justices whom former President Donald Trump appointed to the bench, only Associate Justice Neil Gorsuch dissented from the majority.

Federal Judge bars the Biden administration from ending the Trump-era "Remain in Mexico" policy

Title 42 is not the only Trump-era immigration policy that the current administration has sought to end. Under Department of Homeland Security Secretary Alejandro Mayorkas, the federal government has further attempted to cancel the Migrant Protection Protocols, also known as "Remain in Mexico," that require applicants to the U.S. asylum system to await their court date in Mexico.

One of the myriad ways by which migrants obtain free access to the U.S. interior is by claiming asylum upon their apprehension by border authorities. They are then released and ordered to appear before an immigration court to process the claim on its merits, though many migrants do not show up. The Trump administration had sought to address this problem by requiring would-be asylees to await their court date on the southern side of the Rio Grande.

The Biden administration has long attempted to end this program, however, sparking a lengthy series of court rulings that resulted in a favorable outcome from the Supreme Court in June 2021. The court determined in a 5-4 ruling that the Biden administration had the discretion to end the program, but returned the case to the lower courts to determine whether Washington followed proper procedure by doing so through an October 2021 memo.

U.S. District Judge Matthew Kacsmaryk then, in December of this year, imposed a stay on the October 2021 order and the termination of the MPP, pending "final resolution of the merits of this action." After initially attempting to end the program in June 2021, the administration has thus far spent roughly 18 months in court seeking a pathway to do so.

Supreme Court freezes student loan debt cancellation until at least February 2023

December has been a particularly poor month for the administration's legal teams, with the justices also pausing Biden's student debt cancellation program, pending the resolution of two separate challenges.

The Biden administration announced in April that it would cancel up to $10,000 in student loan debt from borrowers earning under $125,000 per year and up to $20,000 for Pell Grant recipients. The Congressional Budget Office estimates the plan will cost taxpayers up to $400 billion.

In one challenge, six Republican-aligned states have asserted that the plan would disproportionately benefit those with the highest earning potential at the expense of those with the lowest. They further contend that the Department of Education lacks the statutory authority to conduct the cancellation. The Eighth Circuit Court of Appeals sided with the Republican states in late October and imposed a stay on the plan.

The Supreme Court in early December rejected the Biden administration's request to lift the stay, upholding it pending oral arguments, which have been set for February 2023.

Moreover, it further rejected a separate bid to halt an unrelated challenge to the plan, and announced in mid-December that it would hear arguments in that case also in February 2023. A U.S. District Judge in Texas struck down the plan as unconstitutional in November.

In that case, two student debt holders, supported by the Job Creators Network have contender the administration's plan unjustly excludes them from debt relief. One plaintiff has a commercially-held loan, which the cancellation excludes, while the other argues that he should receive the full relief despite not receiving a Pell Grant.

"Respondents believe it is irrational, arbitrary, and unfair to exclude Brown from the Program just because her debt is commercially held and not in default, and to calculate the amount of debt forgiveness Taylor receives based on the financial circumstances of his parents," their counsel wrote when asking the Supreme Court to allow their case to proceed.

The Biden administration will likely need to win both suits in order to implement its debt cancellation.

Courts block Air Force's COVID-19 vaccine mandate

Biden has signed the National Defense Authorization Act, which included a provision ending the Department of Defense's COVID-19 vaccine mandate for military service members. Congress included the provision over the objections of both Biden and Defense Secretary Lloyd Austin. Prior to that, however, the administration had suffered significant legal setbacks to the policy.

In late November, the U.S. Sixth Circuit Court of Appeals took the side of several unvaccinated Air Force service members, upholding a lower court ruling that imposed a stay on the mandate.

The plaintiff service members had requested religious exemptions to receiving the vaccine, but were denied. The court observed at the time that the military had only granted 135 religious exemptions of the roughly 10,000 applications it had received and all of the approved applications came from service members planning to leave the military within one year.

The legislative repeal of the mandate will likely render the case moot, though both the district court and appeals court had delivered losses to the administration on the matter.

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