GOP states ask appeals court to preserve Title 42 border policy

A lower court has ordered the Biden administration to end the pandemic-era restrictions by Dec. 21

Hundreds of migrants who left shelters in Juarez yesterday and crossed the Rio Grande to request political asylum wait to cross the border on the banks of the Rio Grande that divides Ciudad Juarez and El Paso, Texas, on Monday. (Jose Zamora/Anadolu Agency via Getty Images)
Hundreds of migrants who left shelters in Juarez yesterday and crossed the Rio Grande to request political asylum wait to cross the border on the banks of the Rio Grande that divides Ciudad Juarez and El Paso, Texas, on Monday. (Jose Zamora/Anadolu Agency via Getty Images)
Posted December 13, 2022 at 4:20pm

A federal appeals court could rule as soon as Friday on a bid from a group of Republican-led states to preserve pandemic-related border controls, with just days remaining until a court order forces the Biden administration to lift the restrictions.

The U.S. Court of Appeals for the District of Columbia Circuit set a fast-tracked schedule to consider a request filed Monday night to pause that lower court ruling against the so-called Title 42 policy.

The policy, in place since March 2020, allows border agents to rapidly “expel” migrants at the border without considering their asylum claims. The Department of Homeland Security expects border crossings to increase if the policy is lifted.

Last month, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia found the pandemic-era policy was issued illegally and ordered the Biden administration to terminate it.

Sullivan’s ruling is set to take effect on Dec. 21. The states asked the D.C. Circuit to pause that ruling by Friday, as they also seek to intervene in the case to defend the Title 42 policy.

If the D.C. Circuit doesn’t halt the court-ordered end of Title 42, the states said they intend to ask the Supreme Court to do so.

The request comes from Arizona, Louisiana, Alabama, Alaska, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Tennessee, Utah, Virginia, West Virginia and Wyoming.

The states argued in their motion that the impending end to the Title 42 directive “will cause an enormous disaster at the border.”

The states further said the Biden administration is “collusively” engaging with the advocacy organizations that challenged the Title 42 policy.

The administration had previously tried to end the border expulsion policy on its own, but a federal judge in Louisiana blocked the government from doing so in separate litigation.

After Sullivan’s ruling, the government announced it would appeal but would not seek to delay the Dec. 21 end date to the Title 42 policy while that litigation continued.

The government is “employing strategic surrender to achieve results through collusion what they could not through rulemaking,” the states said in their motion.

The states’ latest effort at the appeals marks the second time this dispute over the Title 42 policy has landed at the D.C. Circuit.

Last year, after Sullivan ruled against the border policy for the first time in this case, a three-judge panel for the D.C. Circuit stayed the lower court judge’s ruling, allowing the Title 42 policy to remain in effect since.