WASHINGTON – President Joe Biden’s administration told the Supreme Court on Tuesday that Republican state officials have no business standing in the way of the decision to end the Title 42 program that allows the government to rapidly expel migrants attempting to enter the country over concerns about the spread of COVID-19.
The administration’s filing is the latest move in a showdown over the Trump-era policy that is playing out amid a chaotic scene on the southwest border as officials gird for an influx of migrants if Title 42 is lifted. That was originally set to happen Wednesday, but the Supreme Court’s last-minute intervention left the fate of the program uncertain.
The states “do not claim to be seeking to vindicate any interest in public health or slowing the spread of COVID-19,” U.S. Solicitor General Elizabeth Prelogar told the court in the administration’s brief. “Instead, they candidly acknowledge that they wish to use the Title 42 orders as a make-shift immigration-control measure.”
The government recognizes “that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings,” the administration told the court. “But the solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification.”
In response to an appeal from 19 conservative states that want to keep Title 42 in place, Chief Justice John Roberts temporarily blocked the Biden administration late Monday from carrying out its plans to end the policy. Roberts asked the federal government to respond to the appeal by Tuesday evening, hours before the program was set to expire.
In its filing Tuesday, the administration asked that if the court denies the states’ request before Friday that it leave the short-term stay in effect until 11:59 p.m. on Dec. 27, effectively blocking the end of Title 42 for a few more days. “That brief continuation,” the government said, “would allow the government to again prepare for a full return to operations.”
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Explainer:Conservative states ask Supreme Court to keep Title 42 policy in place
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Roberts’ single-page order did not signal how the Supreme Court will rule on the states’ request. A more lasting decision from the high court is expected in coming days.
Title 42 permits Customs and Border Protection agents to expel migrants without the usual legal review to Mexico or to their home countries to prevent the spread of COVID-19 in holding facilities. Title 42 has been used to expel migrants more than 2.4 million times since its implementation in 2020 and has bottled up tens of thousands of migrants in Mexican border cities who are waiting to request asylum in the United States.
The Biden administration announced in April that it intended to wind down the policy because vaccines and therapeutics had eased the impact of the virus.
As Washington tried to parse how the Supreme Court might rule, elected officials along the border said they were preparing for the program to end – at some point. El Paso, Texas, Mayor Oscar Leeser said the city would continue to provide humanitarian and logistical support to help migrants released by Border Patrol. Leeser declared a state of emergency as Border Patrol encounters in the region reached 2,500 per day.
Across the border, meanwhile, there was confusion. Some migrants in Juárez said they heard that the border would “close” on Wednesday; others that it would “open.” People staying in shelters over the weekend shared stories of friends who had been expelled to Mexico and others who had been granted a chance to stay in the U.S.
Kelson Joseph, who has spent the past year in Juárez waiting for a shift in U.S. immigration policy, was one of the people waiting.
Joseph stood on the south bank of the Rio Grande on Monday and looked north. The 26-year-old Haitian had covered the better part of the Western Hemisphere to arrive here, working in Brazil for a time and then at a Juárez assembly plant. His Mexican work permit had run out; he longed to reunite with friends and family in California.
“I have been scared to cross,” Joseph said in Spanish, “because there have been so many deportations. But people are saying it will be easier (after Title 42 ends). I’m just waiting to see. When I hear that it is a good time to cross, I’m going to try.”
The litigation around Title 42 has put the Biden administration in an unusual position: On the one hand, it ostensibly wants to end the program. On the other, it has faced criticism from Republicans and some Democrats who worry that border officials are not prepared for the potential onslaught of new migrants seeking to claim asylum.
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Department of Homeland Security officials say they have scrambled resources to the border but the White House is also pressuring Congress for more money to deal with a potential increase in migrants.
In the courts, the administration has appealed a ruling last month from a U.S. District court ordering it to stop the expulsions – even though it had intended to do so on its own. That appeal, experts say, is based on a principle that an administration should have the power to implement such programs in the same manner in the future.
Biden will travel to Mexico next month to meet with Mexican President Andrés Manuel López Obrador, the White House said Tuesday. Biden will be in Mexico City in January for the North American Leaders’ Summit.
Contributing: Lauren Villagran, El Paso Times, Francesca Chambers