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Supreme Court keeps Title 42 border policy in place for now

Justices set quick pace on request from Republican-led states to prevent a court-ordered end to the restrictions this week

Mexican migration authorities guard one of the sides of the Tijuana River at the U.S.-Mexico border seen from Tijuana, Mexico, on Monday.
Mexican migration authorities guard one of the sides of the Tijuana River at the U.S.-Mexico border seen from Tijuana, Mexico, on Monday. (Guillermo Arias/AFP via Getty Images)

The Supreme Court on Monday put a temporary hold on a lower court order that would end the so-called Title 42 policy this week, as the justices consider a request from more than a dozen Republican-led states to preserve the pandemic-related border restrictions.

The order, signed by Chief Justice John G. Roberts Jr., presses pause on the lower court order to end the Title 42 policy until further order from the high court. Roberts ordered additional briefing by Tuesday evening in response to a request Monday from Arizona, Texas, Alabama and other states.

A federal judge in Washington had ordered the policy to end by Wednesday, and the federal government has been preparing to comply. That Title 42 policy has allowed border agents to rapidly “expel” migrants who cross the border without considering their asylum claims for nearly three years.

The Justice Department indicated it did not plan to fight to keep the border policy in place while it appealed that decision, prompting the states to ask to intervene in the case and defend the border restrictions in court.

The states told the justices in a filing earlier Monday they will be negatively affected by increased levels of migration if the Title 42 policy ends, and the justices should step in “given the enormous national importance of this case.”

“It is not reasonably contestable that the failure to grant a stay will cause an unprecedented calamity at the southern border,” the states told the justices.

The states claimed in the filing that the Department of Homeland Security estimates daily illegal crossings may more than double from around 7,000 per day to 15,000 per day once Title 42 is terminated.

“DHS is further seeking $3-4 billion in emergency funding to attempt to handle this crisis that the Federal Government is so eagerly embracing,” the states wrote.

The Department of Homeland Security said in a statement Monday evening that during this stage in the case it “will continue our preparations to manage the border in a safe, orderly, and humane way when the Title 42 public health order lifts.”

The department urged Congress, which is expected to soon release a fiscal 2023 spending package, “to use this time to provide the funds we have requested for border security and management and advance the comprehensive immigration measures President Biden proposed on his first day in office.”

Late action

A federal judge in Washington last month ruled the policy was illegal and ordered it to end. In the Monday filing, the states contend that the federal government’s decision not to ask for reprieve from court-ordered termination date amounts to “calculated and strategic surrender.”

The Biden administration has already tried to rescind the Title 42 policy, launched under the Trump administration, but was stopped in court following separate litigation.

The U.S. Court of Appeals for the District of Columbia Circuit rejected the group’s request to intervene in the case late Friday. In a brief unsigned order, a panel of the appeals court concluded that the states’ request to intervene had come too late in the case, which was filed nearly two years ago.

Amid the potential for further court action, the Department of Homeland Security has been preparing for a potential increase in migration if the Title 42 policy is lifted.

In planning documents released last week, the department said it has hired nearly 1,000 Border Patrol processing coordinators and constructed more short-term detention facilities along the border to prepare to reinstate regular asylum procedures at the southwest border.

Controversial policy

The Title 42 policy has drawn widespread condemnation from human rights advocates who say the directive flouts the United States’ obligations not to send people to countries where they face persecution.

Public health officials have also publicly questioned the stated rationale behind the policy, which is to prevent the introduction of COVID-19 into the United States. Last year, Dr. Anne Schuchat, a former Centers for Disease Control and Prevention official, told a House panel she didn’t believe the border directive was necessary to prevent the spread of the virus at the time.

And earlier this year, the same House panel published a report revealing that the Title 42 policy was drafted and implemented without input from the CDC’s public health experts. Dr. Martin Cetron, director of the CDC’s division of global migration and quarantine, told lawmakers that the Title 42 order was “not drafted by me or my team,” but rather was “handed to us.”

Still, members of Congress from both political parties have previously signaled support for efforts to extend the restrictions, citing concerns that lifting them would draw a sharp increase in migration to the southwest border that could overwhelm government facilities and border communities.

A proposal to extend the border expulsion policy was floated as part of a possible immigration deal by Sens. Thom Tillis, R-N.C., and Kyrsten Sinema of Arizona, who recently announced she would be switching her registration from Democrat to independent. But bipartisan talks fell apart last week after the pair were unable to reach agreement and draft legislation before the end of the legislative calendar.

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