In Tuesday’s order, five conservative judges sided with Republican officials in 19 states, including Texas and Arizona, who were seeking to uphold Title 42, which has been used to deport more than 2 million migrants times since its implementation in March 2020.
But the court’s action was temporary and it will consider in February whether the states had the legal capacity to intervene in the dispute.
The court order was unsigned, but the court’s three liberal justices, along with conservative judge Neil M. Gorsuch, objected.
Gorsuch wrote that the court’s action was intended to avert a border crisis, but that was not the role of the judges.
“The current border crisis is not a COVID crisis,” Gorsuch wrote. “And courts shouldn’t be tasked with perpetuating administrative decrees designed for one emergency just because elected officials failed to respond to another emergency.” We are a court of law, not policy makers of last resort. »
Gorsuch’s statement was joined by Judge Ketanji Brown Jackson. Judges Sonia Sotomayor and Elena Kagan reportedly denied the states’ request but did not give reasons.
The Biden administration said ending the policy would restore existing federal laws designed to quickly punish and deport migrants who cross the border illegally and to protect those with legitimate asylum claims. This system is more efficient, officials said, especially for adults traveling without children, because Title 42 only pushes people across the border to try again.
Official border crossings remain essentially closed to asylum seekers while Title 42 remains in effect. This has helped fuel an influx of thousands of migrants crossing the border outside of legal entry points, hoping to surrender to border police and apply for an asylum procedure that would allow them to stay – at less temporarily – in the United States.
Texas National Guard blocks migrant flow across border in El Paso
In November, a DC trial court judge overturned Title 42, siding with immigrant advocates who had sued the government under the Trump administration, saying the policy puts migrants at risk and that it there was no evidence that it was protecting public health. U.S. District Judge Emmet G. Sullivan said the Centers for Disease Control and Prevention order – touted as a way to stem the spread of the coronavirus – was “arbitrary and capricious” under federal law.
“It is undisputed that the impact on migrants was indeed disastrous,” Sullivan wrote.
The Biden administration has agreed the policy must end even as it struggles to cope with the influx of migrants. U.S. Solicitor General Elizabeth B. Prelogar told judges the federal government recognizes that lifting Title 42 “would likely lead to disruption and a temporary increase in illegal border crossings.” But she wrote that the solution to this immigration problem “cannot be to extend indefinitely a public health measure that everyone now agrees has outlived its public health rationale.”
The government, she wrote in a court filing, is prepared to increase resources and “implement new policies in response to the temporary disruptions that may occur as Title 42 orders end.”
Republican state officials have asked the Supreme Court to intervene in the case and block the Biden administration’s plans to end the policy. Officials said a sharp increase in the number of migrants crossing the border would impose additional costs on their states for law enforcement and the provision of services such as health care.
“No one reasonably disputes that failure to grant a reprieve will cause a crisis of unprecedented magnitude at the border,” the filing said. “The idea that States will not suffer substantial irreparable harm from the impending catastrophe of a Title 42 termination is therefore fanciful.”
What is Title 42? Explaining Trump-era border politics
In April, the Centers for Disease Control and Prevention determined that the Title 42 initiative was no longer necessary to protect public health. The Biden administration told the Supreme Court this week that state officials lacked a valid legal basis to challenge the change in immigration policy. If state officials are not satisfied with the immigration system created by Congress, the government has said, “their recourse is to ask Congress to change the law – not to ask this court to compel the government to continue to rely on an extraordinary and now outdated public health measure.”
With the fate of the policy unclear and with migrants continuing to stream across the border, Republican governors mobilized National Guard troops and attempted to create their own border barriers and obstacles. Texas Governor Greg Abbott deployed more than 500 troops along the Rio Grande in El Paso this week, where troops pinned down migrants with spools of accordion wire. Footage on social media showed border commuters skirting hazards to arrive on US soil and surrender to US Border Patrol officers, the first step in claiming asylum.
In Arizona, Governor Doug Ducey (right) has agreed to start removing thousands of empty containers his administration has piled up along the Mexican border in recent months. The Biden administration sued Ducey in federal court, arguing that installing the huge metal boxes inflicted damage on national forest lands and other property that does not belong to the state of Arizona.
Arizona Governor-elect Katie Hobbs, a Democrat, will succeed Ducey next month when her term expires. Hobbs criticized the installation of shipping containers as wasteful and inefficient.