The Supreme Court on Tuesday blocked the Biden administration’s plans to end a pandemic-era policy allowing the quick expulsion of migrants from U.S. borders without the opportunity to seek asylum.
The Trump-era policy, known as Title 42, had been set to expire last week, but Chief Justice John G. Roberts Jr. paused that plan to give the high court time to weigh the issue.
In Tuesday’s order, five conservative justices sided with Republican officials in 19 states, including Texas and Arizona, who sought to maintain Title 42, which has been used to expel migrants more than 2 million times since it was implemented in March 2020.
But the court’s action was temporary, and it will consider in February whether the states had the legal standing to intervene in the dispute.
The court’s order was unsigned, but the court’s three liberal justices, along with conservative Justice Neil M. Gorsuch, objected.
Gorsuch wrote that the court’s action was designed to help avert a crisis at the border, but that was not the role of judges.
“The current border crisis is not a COVID crisis,” Gorsuch wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”
Gorsuch’s statement was joined by Justice Ketanji Brown Jackson. Justices Sonia Sotomayor and Elena Kagan would have turned down the request from the states but did not give their reasoning.
The Biden administration has said that ending the policy will restore existing federal laws designed to punish and quickly deport migrants who cross the border illegally and to protect those with legitimate asylum cases. That system is more effective, officials have said, particularly for adults traveling without children, since Title 42 merely pushes people to the other side of the border to try again.
Official border crossings remain essentially closed to asylum seekers while Title 42 remains in effect. That has helped fuel an influx of thousands of migrants crossing the border outside of the legal entry points, hoping to turn themselves in to border police and request asylum proceedings that would allow them to stay — at least temporarily — in the United States.
In November, a trial court judge in D.C. vacated Title 42, siding with immigrant advocates who had sued the government during the Trump administration, saying the policy put migrants in danger and there was no evidence that it protected public health. U.S. District Judge Emmet G. Sullivan said the order from the Centers for Disease Control and Prevention — introduced 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 dire,” Sullivan wrote.
The Biden administration agreed that the policy should end even as it struggled to deal with the influx of migrants. U.S. Solicitor General Elizabeth B. Prelogar told the justices the federal government recognizes that lifting Title 42 “will likely lead to disruption and a temporary increase in unlawful border crossings.” But she wrote that 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.”
The government, she wrote in a court filing, is prepared to increase resources and to “implement new policies in response to the temporary disruption that is likely to occur whenever the Title 42 orders end.”
Republican state officials asked the Supreme Court to intervene in the case and to block the Biden administration’s plans to terminate the policy. The officials said a large increase in migrants crossing the border would burden their states with added costs for law enforcement and to provide services such as health care.
“No one reasonably disputes that the failure to grant a stay will cause a crisis of unprecedented proportions at the border,” the filing says. “The idea that the States will not suffer substantial irreparable harm as a result of the imminent catastrophe that a termination of Title 42 will occasion is therefore fanciful.”
In April, the Centers for Disease Control and Prevention determined that the Title 42 initiative was no longer needed to protect public health. The Biden administration told the Supreme Court this week that the state officials do not have valid legal grounds to challenge the change in immigration policy. If state officials are unhappy with the immigration system Congress created, the government said, “their remedy is to ask Congress to change the law — not to ask this court to compel the government to continue relying on an extraordinary and now obsolete public-health measure.”
With the fate of the policy unclear, and migrants continuing to pour across the border, Republican governors have mobilized National Guard troops and attempted to create border barriers and impediments of their own. Texas Gov. Greg Abbott deployed more than 500 soldiers along the Rio Grande in El Paso this week, where the troops blocked migrants with spools of concertina wire. Social media footage showed border-crossers diverting around the hazards to arrive on U.S. soil and surrender to U.S. Border Patrol agents, the first step in seeking asylum.
In Arizona, Gov. Doug Ducey (R) has agreed to begin removing thousands of empty containers his administration stacked along the Mexico border over the past several months. The Biden administration sued Ducey in federal court, arguing the installation of the huge metal boxes was inflicting damage on National Forest land 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 his term expires. Hobbs has criticized the installation of the shipping containers as wasteful and ineffective.