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Supreme Court leaves in place Title 42 border policy for now

The Trump-era policy allows quick expulsion of migrants from U.S. borders without the chance to seek asylum

The Supreme Court said Dec. 27 that a pandemic-era border restriction known as Title 42 will remain in effect for the time being. (Video: Reuters)
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The Supreme Court on Tuesday blocked the Biden administration’s plans to end a pandemic-era policy allowing the quick expulsion of migrants from U.S. borders without the opportunity to seek asylum, as officials warned of a crisis along the southern border.

A federal judge had ruled that the Trump-era policy, known as Title 42, should expire last week, but the court’s action extends a pause Chief Justice John G. Roberts Jr. imposed to give the high court more time to weigh the issue.

In Tuesday’s order, five conservative justices sided with Republican officials in 19 states, including Texas and Arizona, who sought to maintain Title 42, which has been used to expel migrants more than 2 million times since it was implemented in March 2020.

In effect, the Supreme Court’s action keeps the status quo in place by blocking the district judge’s order until the court can consider the dispute in late February. But the court said it will consider only whether the objecting states have the legal standing to intervene.

While the majority did not provide reasoning, which is common in emergency requests, dissenting Justice Neil M. Gorsuch said the order would “effectively require the federal government to continue enforcing the Title 42 orders indefinitely.” He suggested that the majority was buying time in hopes the political branches would reach a compromise.

It is the latest example of the escalating legal and political battles among the Biden administration, immigration advocates, and Republican officials in states along the border and elsewhere who say they bear the brunt of illegal crossings. Texas Gov. Greg Abbott (R) last week sent busloads of migrants to be dropped off in freezing temperatures outside Vice President Harris’s residence.

White House press secretary Karine Jean-Pierre said the administration will comply with the Supreme Court’s action but added that “Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.”

She called for Republicans in Congress to “move past political finger-pointing and join their Democratic colleagues in solving the challenge at our border by passing the comprehensive reform measures and delivering the additional funds for border security that President Biden has requested.”

Abbott, meanwhile, tweeted that “Texas is stepping up while the Biden Admin fails to do its job. Texas National Guard is adding more barriers with razor wire & stationing humvees along the border to stop illegal crossings.”

An immigration lawyer explains why advocates hope the law will be allowed to expire, and why others think it’s critical to addressing a crisis at the border. (Video: Rich Matthews/The Washington Post)

The court’s order was unsigned, but the court’s three liberal justices, along with the conservative Gorsuch, objected.

Gorsuch wrote that he did not doubt the states’ argument that there was a crisis at the border but that the legal issue in front of the court was not the way to solve it.

“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.”

Gorsuch’s statement in the emergency matter was joined by liberal Justice Ketanji Brown Jackson. Justices Sonia Sotomayor and Elena Kagan noted that they would have turned down the request from the states but did not give their reasoning.

Those notations mean that the majority was composed of Roberts and Justices Clarence Thomas, Samuel A. Alito Jr., Brett M. Kavanaugh and Amy Coney Barrett. They did not provide a reasoning for extending the stay of the lower court’s order.

The Biden administration has said that ending the policy will restore existing federal laws designed to punish and quickly deport migrants who cross the border illegally and to protect those with legitimate asylum cases. That system is more effective, officials have said, particularly for adults traveling without children, since Title 42 merely pushes people to the other side of the border to try again.

Official border crossings are essentially closed to asylum seekers while Title 42 remains in effect. That has helped fuel an influx of thousands of migrants crossing the border outside legal entry points, hoping to turn themselves in to border police and request asylum proceedings that would allow them to stay — at least temporarily — in the United States.

Texas National Guard blocks migrant flow across border in El Paso

In November, a trial court judge in D.C. vacated Title 42, siding with immigrant advocates who had sued the government during the Trump administration, saying the policy put migrants in danger and there was no evidence that it protected public health. U.S. District Judge Emmet G. Sullivan said the order from the Centers for Disease Control and Prevention — introduced as a way to stem the spread of the coronavirus — was “arbitrary and capricious” under federal law.

“It is undisputed that the impact on migrants was indeed dire,” Sullivan wrote.

The Biden administration agreed that the policy should end even as it has struggled to deal with the influx of migrants. U.S. Solicitor General Elizabeth B. Prelogar told the justices that the federal government recognizes that lifting Title 42 “will likely lead to disruption and a temporary increase in unlawful border crossings.” But she wrote that the solution to that immigration problem “cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification.”

The government, she wrote in a court filing, is prepared to increase resources and to “implement new policies in response to the temporary disruption that is likely to occur whenever the Title 42 orders end.”

Republican state officials asked the Supreme Court to intervene in the case and to block the Biden administration’s plans to terminate the policy. The officials said a large increase in migrants crossing the border would burden their states with added costs for law enforcement and services such as health care.

“No one reasonably disputes that the failure to grant a stay will cause a crisis of unprecedented proportions at the border,” the filing says. “The idea that the States will not suffer substantial irreparable harm as a result of the imminent catastrophe that a termination of Title 42 will occasion is therefore fanciful.”

What is Title 42? Explaining the Trump-era border policy

In April, the CDC determined that Title 42 was no longer needed to protect public health. The Biden administration told the Supreme Court last week that the state officials do not have valid legal grounds to challenge the change in immigration policy. If state officials are unhappy with the immigration system Congress created, the government said, “their remedy is to ask Congress to change the law — not to ask this Court to compel the government to continue relying on an extraordinary and now obsolete public-health measure.”

With the fate of the policy unclear, and migrants continuing to pour across the border, Republican governors have mobilized National Guard troops and attempted to create border barriers and impediments of their own. Abbott deployed more than 500 soldiers along the Rio Grande in El Paso last week, where they blocked migrants with spools of concertina wire. Social media footage showed border-crossers diverting around the hazards to arrive on U.S. soil and surrender to Border Patrol agents, the first step in seeking asylum.

In Arizona, Gov. Doug Ducey (R) has agreed to begin removing thousands of empty containers his administration stacked along the Mexico border over the past several months. The Biden administration sued Ducey in federal court, arguing that the installation of the huge metal boxes was inflicting damage on national forest land and other property that does not belong to the state of Arizona.

Arizona governor-elect Katie Hobbs, a Democrat, will succeed Ducey next month. Hobbs has criticized the installation of the shipping containers as wasteful and ineffective.

ACLU attorney Lee Gelernt, the lead lawyer in the Title 42 lawsuit, said in a statement that his organization will “continue to challenge this horrific policy that has caused so much harm to asylum seekers and cannot plausibly be justified any longer as a public health measure.”

Nick Miroff and Maria Sacchetti contributed to this report.