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GOP states urge Supreme Court to allow border policy defense

Texas, Arizona and others want to defend the Title 42 rule in place of the Biden administration

The Supreme Court building as seen in December.
The Supreme Court building as seen in December. (Celal Gunes/Anadolu Agency via Getty Images)

A group of Republican-led states urged the Supreme Court on Wednesday to let them join litigation to defend pandemic-related border restrictions, warning a decision otherwise could pave the way for presidents to improperly abandon policies they dislike from their predecessors.

More than a dozen states, including Texas and Arizona, filed a brief that accused the Biden administration of failing to sufficiently defend the so-called Title 42 policy in court in a deliberate effort to rescind the directive outside of the regulatory process.

The court filing is the latest in a lengthy legal saga over the border rule, which was implemented under the Trump administration and allows border agents to turn away asylum-seekers on public health grounds.

The states’ request to join the case was shot down by the U.S. Court of Appeals for the District of Columbia Circuit, and the Supreme Court will review that single issue in this case.

The states told the justices in their brief that the administration’s tactics in this case “are corrosive to the rule of law and the authority of federal courts” and will allow future presidential administrations to circumvent the policy-making procedures established by the Administrative Procedure Act.

If the Supreme Court “blesses that gambit by affirming the D.C. Circuit, the Court and the country can expect to see the same tactic employed whenever a presidential administration decides it prefers to eliminate a preceding administration’s rules without the hassle of APA rulemaking,” they wrote.

The states also contended that their request to join the case was “plainly timely,” and that they have shown the government’s defense of the Title 42 policy falls short.

A federal judge struck down the policy in November and ordered it to terminate the following month. While the Biden administration has appealed the ruling and continued to defend the legality of the Title 42 rule in court, the government did not request to keep the policy in place while legal challenges continue.

This prompted the state coalition to step in and ask to defend the border policy in the government’s place. But the D.C. Circuit rejected the states’ request, concluding it came too late in the litigation.

Last month, the Supreme Court halted the court-ordered termination of the Title 42 rule, keeping the policy in effect for now while it considers the states’ broader request. Oral argument is scheduled for March 1, nearly three years after the border policy was first put into effect.

If the high court ultimately decides to grant the states’ request, it will greenlight continued litigation surrounding the Title 42 policy and likely result in the border policy remaining in place for months longer.

The policy has caused rancor on Capitol Hill. Congressional Republicans and some moderate Democrats have been wary of efforts to end the Title 42 policy, which has allowed Republicans to use division on the issue to hold up unrelated legislation.

Border agents have expelled a migrant under Title 42 more than 2.3 million times since the policy was established in March 2020. The American Civil Liberties Union, which challenged the directive in court on behalf of migrant families, has argued the Title 42 rule violates the U.S.’s legal obligations to consider asylum claims.

Meanwhile, encounters with migrants at the border — which include some repeat encounters with those expelled under Title 42 — have remained high. Border agents logged more than 465,000 migrant encounters in October and November alone, according to government data.

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