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Supreme Court keeps Title 42 in place while agreeing to hear states’ appeal

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On Tuesday, a divided Supreme Court sided with a group of mostly Republican-led states and ordered the pandemic-era public health protocol known as Title 42 – which began at the start of COVID-19 and allows the deportation of migrants at the border – to remain in place pending a hearing before the judges.

The 5-4 ruling overturns lower court rulings that Title 42 was to end in December and means the policy will remain in effect until a final ruling.

The Supreme Court has scheduled oral arguments on the appeal for February, but said in a statement that “the stay itself does not preclude the federal government from taking action regarding this policy.”

In other words, in the court’s view, the Biden administration still has the power and prerogative to end the policy on its own if it chooses.

The court said it was preparing to consider a narrow procedural question unrelated to the merits of Title 42 itself: whether states challenging the policy can step in to challenge the district court’s summary judgment order.

Judges Samuel Alito, Brett Kavanaugh, Amy Coney Barrett, John Roberts and Clarence Thomas, all members of the conservative wing, agreed to grant a hearing on the appeal.

Judges Sonia Sotomayor and Elena Kagan said they would have denied the states’ request. Justice Neil Gorsuch — the only named Republican not to vote to grant the request — and Justice Ketanji Brown Jackson also reportedly denied the request, writing in dissent that “we are a court, not final-resort decision makers.”

Migrants line up near the border wall after crossing the Rio Bravo River to surrender to US Border Patrol agents to seek asylum in the US city of El Paso, Texas, seen from Ciudad Juarez, Mexico , on December 14, 2022.

Jose Luis Gonzalez/Reuters

US District Judge Emmet Sullivan previously set a December 21 deadline to end the expedited eviction order, deeming it ‘arbitrary and capricious’, with minimal impact on public health despite its purported goal of slowing down the spread of COVID-19.

This date will now be pushed back several months until the Supreme Court holds its hearing and renders its decision.

Nineteen states intervened after Sullivan’s decision in November. They argued that ending Title 42 would create a “crisis” of unauthorized migration that would unduly burden law enforcement, education and health care services.

Their appeal was denied in December, and the states filed an emergency petition with Supreme Court Chief Justice Roberts on December 19.

Roberts, who oversees the appellate circuit handling the case, initially granted a temporary stay later in the day, giving the court time to consider the request.

The justices have now agreed to hear the States’ appeal and granted a longer stay until their decision on the fate of Title 42.

Migrant and civil rights advocates argue that Title 42 illegally prevents people from applying for asylum while trying to enter the United States

White House press secretary Karine Jean-Pierre said in a written statement that the Biden administration would “of course comply with the order and prepare for the Court’s review.”

“Today’s Supreme Court order keeps the current Title 42 policy in place while the Court revisits the case in 2023,” she said. “We will, of course, comply with the order and prepare for the Court’s review.”

Jean-Pierre called on Congress to pass comprehensive immigration reform.

“Today’s order gives Republicans in Congress ample time to move past the political charges and join fellow Democrats in resolving the challenge at our border by passing comprehensive reform measures and providing additional funds for security. borders that President Biden has asked for,” she said.

The Department of Homeland Security said in a statement, in part, “As required by today’s Supreme Court order, the Title 42 Public Health Order will remain in effect and individuals attempting illegally entering the United States will continue to be deported to Mexico or their country of origin. People should not listen to the lies of smugglers who take advantage of vulnerable migrants, putting lives at risk. The border is not not open and we will continue to fully enforce our immigration laws.

In a statement, Lee Gelernt, lead counsel for the ACLU’s Title 42 challenge, said, “We are deeply disappointed for all of the desperate asylum seekers who will continue to suffer because of Title 42, but we We will continue to fight to end politics.”

ABC News’ Armando Garcia, Benjamin Gittleson and Luke Barr contributed to this report.

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