Skip to content

Biden push to end Title 42 border policy won’t end the legal fights

The Supreme Court canceled oral arguments in a case over the pandemic-era policy for now, but other court battles await

The Supreme Court building in December 2022.
The Supreme Court building in December 2022. (Celal Gunes/Anadolu Agency via Getty Images)

The Supreme Court likely won’t decide a current case on the so-called Title 42 border policy this term if the Biden administration follows through with plans to end that pandemic-era directive in May, legal experts said.

But that almost certainly would usher in a new round of court battles, either as a challenge to this latest attempt to end the Title 42 policy or as a challenge to some of the policies that replace it.

The justices in December agreed to decide an appeal from a group of Republican-led states that are seeking to defend the policy, which has been in place since 2020. The policy allows border agents to rapidly turn back migrants who cross the border without considering their asylum claims.

But the Supreme Court canceled oral arguments in the case that had been set for March 1. Though the justices did not explain their reasoning, the move came shortly after President Joe Biden announced he would let the COVID-19 public health emergency expire on May 11.

The Biden administration told the justices that the end of the emergency would also end the border restrictions, which in turn would make it unnecessary for the justices to decide a case related to a pandemic-era border expulsion policy.

Josh Blackman, a constitutional law professor at the South Texas College of Law, said the high court’s decision to cancel the hearing was “expected,” given the potential for the issue to no longer be relevant. It also signals that the high court may ultimately toss the case.

Blackman and other attorneys said that if the administration follows through with its plans to end the Title 42 policy in May, the high court may ask the parties to submit additional court briefs about whether the litigation is worth pursuing if the policy is no longer in effect. The Supreme Court could also dismiss the case at any point.

And while the Supreme Court could theoretically reschedule the oral argument for March or April to consider it before the term concludes at the end of June, Blackman predicted that the justices would more likely toss the case or send it back to the lower courts in Washington.

“I think the court’s going to run away from this as quickly as they can,” Blackman said.

Another round

But court battles over the Biden administration’s border policies would still be far from over.

A group of Republican-led states have fought to require the U.S. to keep the Title 42 policy in place, in a separate lawsuit that started in a Louisiana federal court. The federal appeals court considering that lawsuit also postponed proceedings until after May 11.

But the Republican-led states involved already indicated that they plan to challenge any planned end to the Title 42 policy, telling the court that the administration’s move “is likely illegal, and one or more states are likely to challenge it.”

It’s unclear whether the states will file a new lawsuit or attempt to update existing litigation.

A Texas federal court is also weighing another lawsuit filed by Republican-led states against a Biden administration program that allows up to 30,000 migrants from certain countries each month to come to the U.S. legally under a process known as parole.

Although it is not directly about the Title 42 policy, the outcome of that litigation could hamper the administration’s ability to comply with any court order keeping the Title 42 policy in place.

The Justice Department said in a recent Supreme Court filing that the migration programs “were critical to Mexico’s decision” to accept migrants from those countries back via Title 42 or regular deportation procedures.

Another front

Separately, recently proposed asylum restrictions intended to take effect after the Title 42 policy ends could fuel litigation from immigrant and human right advocates.

Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School, predicted that challenges to that policy would be “the next big litigation we will see.”

The Biden administration issued a proposed rule in February that would limit asylum eligibility for migrants who crossed through another country en route to the U.S.-Mexico border.

The Department of Homeland Security said the proposed policy is intended to respond to an expected increase in migration once the Title 42 policy is lifted, but could also take effect earlier if needed.

Immigrant advocates promptly decried the proposal as illegal and compared it to a policy from the Trump administration that barred migrants from qualifying for asylum if they have passed through another nation without first seeking asylum there. That Trump-era policy was struck down in court.

Lee Gelernt, an attorney with the American Civil Liberties Union behind the Title 42 lawsuit at the Supreme Court, told reporters last week that if the asylum restrictions take effect, “we will sue, just as we successfully sued over the Trump asylum bans.”

Kathleen Bush-Joseph, an attorney and associate policy analyst at the Migration Policy Institute, said the mounting litigation shows that immigration policy “is being increasingly driven by litigation concerns.”

“The fact that seemingly every major immigration policy that the Biden administration has put forward is under threat of litigation, or currently being litigated, means that the situation on the ground for those trying to implement policy is extremely difficult,” Bush-Joseph said.