The Supreme Court granted a request from Republican-led states to stop the Biden administration from quickly stopping the pandemic-related provision on Tuesday, allowing border officers to continue deporting immigrants under the so-called Title 42 program indefinitely.
The end of Title 42 was initially scheduled to occur on December 21 due to a lower court judgment that deemed the policy to be unconstitutional; however, 19 Republican-led states asked the high court to hear their case in order to postpone that date.
In its February 2023 session, the Supreme Court will now hear arguments over whether or not it should permit the Republican-controlled states to defend the legality of Title 42.
The lower court’s decision to nullify the expulsion policy was suspended in the meantime by the court.
As a result, Title 42 will probably continue in effect for a while while the supreme court reviews it.
Federal border officials have used Title 42, a public health law from the 19th century, to send migrants back to Mexico or their home countries 2.5 million times without allowing them to apply for asylum, a right guaranteed by U.S. and international refugee law. Title 42 was first used in March 2020, at the start of the COVID-19 pandemic.
Top officials at the U.S. Centers for Disease Control and Prevention have maintained that Title 42 was created to stop the spread of the coronavirus by restricting migrant entrance under both the Trump and Biden administrations.
However, outside experts and the CDC’s own scientists have disputed the policy’s claim that it is in the public’s best interest.
Conservative Justice Neil Gorsuch joined liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson in rejecting the motion from the Republican-led states.
Jackson agreed with Gorsuch in his dissenting opinion, which stated it was wrong for the Supreme Court to maintain the border expulsions. Gorsuch also noted that the GOP states did not “seriously contest that the public-health justification underlying the Title 42 orders has lapsed.”
Gorsuch acknowledged the states’ worries that the termination of Title 42 might cause a greater increase in migrant arrivals, but he asserted that “the existing border issue is not a COVID catastrophe.”
He said that federal courts “should not be engaged in the practice of upholding administrative orders made in response to one emergency solely because elected officials have failed to do so in response to another disaster.
We are a court of law, not a final arbiter of policy.”
White House press secretary Karine Jean-Pierre said in a statement on Tuesday that the administration would abide by the Supreme Court’s decision.
She nevertheless repeated Gorsuch’s views and urged Congress to enact more immigration and border control regulations.
While Title 42 is still in effect, Jean-Pierre continued, “we are extending legal channels for immigration and moving on with our plans to handle the border in a secure, orderly, and humane manner.”
Title 42 should not be indefinitely prolonged because it is a public health measure rather than an immigration enforcement instrument.
The U.S. State Department advises Americans not to travel to certain regions of Mexico due to the high rates of crime, including kidnappings, in those areas. Asylum-seekers’ advocates sharply criticized Tuesday’s decision, claiming it would continue to put migrants at risk of being victimized in those areas.
In keeping with Lee Gelernt, an attorney for the American Civil Liberties Union who brought the case challenging the expulsions, “keeping Title 42 will mean additional suffering for desperate asylum seekers, but hopefully this proves simply to be a temporary setback in the judicial fight.”
The U.S. has employed Title 42 for nearly three years to quickly deport the bulk of adult migrants from Mexico and the Northern Triangle of Central America who have halted along the southern border.
The Biden administration has relied on Title 42 as its primary border enforcement instrument despite record levels of migrant apprehensions reported in fiscal years 2021 and 2022, even though it overturned parts of the Trump administration’s asylum policy.
According to Customs and Border Protection, federal agents detained migrants along the U.S.-Mexico border 2.3 million times in fiscal year 2022, a 12-month period that concluded on September 30. Just over one million of those detentions resulted in expulsions under Title 42.
While Title 42 technically applies to all immigrants who lack authorization to enter the United States, some do not risk expulsion owing to diplomatic, logistical, and policy considerations.
Examples of groups who have been exempted from Title 42 under the Biden administration include unaccompanied minors, Ukrainian refugees, and asylum seekers who are regarded to be vulnerable.
Furthermore, migrants from Guatemala, Honduras, El Salvador, and more lately Venezuela confront an excessive number of expulsions to Mexico because the Mexican government has traditionally only accepted the return of its own.
The authoritarian governments in Cuba, Nicaragua, and Venezuela—where record numbers of their citizens have fled to the U.S. to escape economic and political unrest—have restricted or denied deportations.
Meanwhile, deportation flights to other remote nations are expensive and infrequent.
This means that the majority of immigrants who are not from Mexico or the Northern Triangle of Central America do not face deportation under Title 42, but rather are handled in accordance with U.S. immigration law, which enables them to apply for asylum.
They frequently receive a court summons or instructions to check in with immigration officers when they arrive at their final U.S. destination.
The Supreme Court’s decision on Tuesday is the most recent development in a complex legal battle over Title 42 that is being fought in federal courts all around the country by the Biden administration, states with a conservative tilt, and organizations that support asylum seekers.
The CDC initially claimed that Title 42 was required to keep the coronavirus under control for two years, but it declared in April that it would no longer be doing so due to better pandemic conditions, including higher vaccination rates in the countries of origin of migrants.
However, at the request of a group of Republican attorneys general, a federal judge in Louisiana this spring halted the termination of Title 42 on procedural grounds.
The Biden administration filed an appeal, but the matter is still pending.