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US urges Supreme Court to let Title 42 border policy end

Justice Department tells justices that Republican states want to keep pandemic directive as the nation’s ‘de facto immigration policy’

The Supreme Court on Monday paused a lower court order striking down the Title 42 border policy.
The Supreme Court on Monday paused a lower court order striking down the Title 42 border policy. (Bill Clark/CQ Roll Call file photo)

The Biden administration urged the Supreme Court on Tuesday to reject a last-ditch effort by a group of states to preserve pandemic-related asylum restrictions, which were initially set to end Wednesday before the high court halted the termination.

The Department of Justice argued in a filing that the Republican-led states should not be allowed to join litigation to defend the so-called Title 42 policy, which was launched during the COVID-19 pandemic and allows border agents to rapidly turn back migrants without considering their asylum claims.

The Biden administration told the justices that it is not fighting to preserve Title 42 now in part because the Centers for Disease Control and Prevention, the agency that issued the border directive, has already decided the policy is no longer needed at this stage of the pandemic.

“Rather than returning to the immigration system prescribed by Congress, applicants ask this Court to compel the government to continue relying on now-obsolete public-health orders as the Nation’s de facto immigration policy,” the Justice Department’s brief states.

A Washington federal judge struck down the border policy last month and ordered it ended by Dec. 21, but the Supreme Court has temporarily paused that order as it decides whether the states can intervene in the case to defend the Title 42 policy in the place of the government.

In the meantime, the government is preparing for the court-ordered end of the Title 42 policy and an expected uptick of migrants crossing the U.S.-Mexico border.

The government asked the high court, if it rules against the states, to slightly delay the effect of that ruling to give it time to “again prepare for a full return to operations” for new asylum procedures at the border.

The government asked that if justices decide before Dec. 23 to allow the Title 42 policy to end, they delay the effect of that decision until Dec. 27, and if on or after Dec. 23, to delay the effect for an additional two business days.

The Justice Department told the justices that the government “recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings.”

“But 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 said.

In a Tuesday brief also opposing the state request, the American Civil Liberties Union, which sued the federal government over the border policy on behalf of migrant families, contended that the states want to maintain the Title 42 policy “as a pretextual means of immigration control,” not as a public health measure as it was officially intended.

“Whatever is ultimately deemed the proper way to handle migration flows and asylum protections, it cannot be through the disingenuous invocation of the Nation’s public health laws in the absence of any even asserted public health rationale, rejected by CDC itself,” the ACLU said.

The response briefs were filed following a request by a group of more than two dozen Republican attorneys general, including in Texas and Arizona, to intervene in the ongoing litigation and defend the border expulsion policy.

The states have argued that lifting the Title 42 policy will cause “an unprecedented calamity” at the U.S.-Mexico border and would carry negative downstream effects on the states.

The U.S. Court of Appeals for the D.C. Circuit rejected the states’ bid to join the case on Friday, finding that the request came too late in the litigation.

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