Republicans and Democrats broadly agree that the nation’s asylum and immigration systems are broken. Both are aware that Congress, paralyzed by partisanship, has failed to provide a fix. But that failure cannot be a pretext for the democracy hack that GOP elected officials from 19 states have undertaken in asking the Supreme Court to retain a Trump-era anti-covid public health measure that has been repurposed as an immigration enforcement tool along the southern border. And by siding with those officials, at least temporarily, the conservative majority on the high court has made a mockery of the law.
Justice Neil M. Gorsuch, the lone conservative to join his three progressive colleagues in opposing the court’s decision on Tuesday, was right to point out the flimsy legal basis that underlaid the order. “The current border crisis is not a COVID crisis,” Gorsuch wrote. “And 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. We are a court of law, not policymakers of last resort.”
Follow Editorial Board's opinionsFollow
The policy in question, known as Title 42, was imposed in March 2020 as the nation was reeling at the onset of a new, poorly understood pandemic. It suspended the legal asylum system, enabling border authorities to quickly expel migrants without giving them the benefit of filing a claim. Since then, Title 42 has been used 2.5 million times to turn migrants back — though many of them, having received no adjudication of their claims, tried repeatedly to cross the border unlawfully.
Press Enter to skip to end of carousel
End of carouselAlso on the Editorial Board’s agenda
- The misery of Belarus’s political prisoners should not be ignored.
- Biden has a new border plan.
- The United States should keep the pressure on Nicaragua.
- America’s fight against inflation isn’t over.
- The Taliban has doubled down on the repression of women.
- The world’s ice is melting quickly.
Ihar Losik, one of hundreds of young people unjustly jailed in Belarus for opposing Alexander Lukashenko’s dictatorship, attempted suicide but was saved and sent to a prison medical unit, according to the human rights group Viasna. Losik, 30, a blogger who led a popular Telegram channel, was arrested in 2020 and is serving a 15-year prison term on charges of “organizing riots” and “incitement to hatred.” His wife is also a political prisoner. Read more about their struggle — and those of other political prisoners — in a recent editorial.
The Department of Homeland Security has provided details of a plan to prevent a migrant surge along the southern border. The administration would presumptively deny asylum to migrants who failed to seek it in a third country en route — unless they face “an extreme and imminent threat” of rape, kidnapping, torture or murder. Critics allege that this is akin to an illegal Trump-era policy. In fact, President Biden is acting lawfully in response to what was fast becoming an unmanageable flow at the border. Read our most recent editorial on the U.S. asylum system.
Some 222 Nicaraguan political prisoners left that Central American country for the United States in February. President Daniel Ortega released and sent them into exile in a single motion. Nevertheless, it appears that Mr. Ortega let them go under pressure from economic sanctions the United States imposed on his regime when he launched a wave of repression in 2018. The Biden administration should keep the pressure on. Read recent editorials about the situation in Nicaragua.
Inflation remains stubbornly high at 6.4 percent in January. The Federal Reserve’s job is not done in this fight. More interest rate hikes are needed. Read a recent editorial about inflation and the Fed.
Afghanistan’s rulers had promised that barring women from universities was only temporary. But private universities got a letter on Jan. 28 warning them that women are prohibited from taking university entrance examinations. Afghanistan has 140 private universities across 24 provinces, with around 200,000 students. Out of those, some 60,000 to 70,000 are women, the AP reports. Read a recent editorial on women’s rights in Afghanistan.
A new study finds that half the world’s mountain glaciers and ice caps will melt even if global warming is restrained to 1.5 degrees Celsius — which it won’t be. This would feed sea-level rise and imperil water sources for hundreds of millions. Read a recent editorial on how to cope with rising seas, and another on the policies needed to fight climate change.
1/7
Whatever Title 42’s benefit at the outset — and there is scant evidence it was effective in combating the pandemic — it had run its course by the time Joe Biden took office. His administration made no effort to justify it; that, along with the repeal of other Trump-era immigration measures, was taken by migrants as a signal of a more lax border. In April, the Centers for Disease Control and Prevention ordered Title 42 terminated.
In November, U.S. District Judge Emmet G. Sullivan pointed to the fact that no evidence buttressed its continued use to protect public health, ruling against the Republican officials who sought to keep it in place. Even as Title 42 was used to block asylum seekers at the border, the judge noted, millions of other travelers were crossing, in buses and cars, with few impediments. What’s more, the CDC had previously rescinded the use of quarantine and other restrictions on the grounds that they were ineffective.
Republicans made no attempt to justify Title 42, a public health measure, on public health grounds. Yet in keeping it in place while the GOP officials continue to press their appeal, the Supreme Court ignored all that, acting more as lawmakers than as judges.
There is little doubt that a new surge of migrants, on top of already record-setting apprehensions, would likely pose a challenge for border enforcement and states along the frontier, at least temporarily, if Title 42 ends. Republicans are right that the Biden administration, by sending mixed messages, has encouraged migrants to try their luck in entering the country unlawfully.
It remains the case that the immigration and asylum system, overwhelmed by a years-long backup in its caseload, cannot be jury-rigged by borrowing a public health measure for an unintended purpose. It is a job for Congress, not courts, to forge a solution.