Court Battles

Supreme Court puts brakes on Title 42’s expiration  

The Supreme Court on Monday temporarily halted the expiration of Title 42, a Trump-era immigration policy that allows border officials to turn away asylum-seekers due to concerns about public health. 

Supreme Court Chief Justice John Roberts granted an administrative stay to temporarily pause the rollback, keeping Title 42 active past the initial expiration date of Dec. 21, pending another order from the Court.  

A federal judge had struck the immigration policy down last month and set it on the path toward expiration, but a group of 19 GOP state attorneys general asked the Supreme Court to let Title 42 stand as states grapple with immigration at the U.S.-Mexico border.

In Monday’s filing, Roberts ordered the Biden administration to respond on the matter by 5 p.m. EST on Tuesday.   

“Earlier today, I filed a motion before SCOTUS asking to halt the Biden’s scrapping of Title 42. Just now, SCOTUS returned a decision in our favor. The fight to keep Title 42 in place continues,” Texas Attorney General Ken Paxton (R) said on Twitter after the announcement.

The border city of El Paso, Texas, declared a state of emergency as an influx of migrants surged into shelters just days ahead of the expected Title 42 end date.  

“Texas and other states are insisting that the Court leave Title 42 in place. Today’s order is a step in that direction. This helps prevent illegal immigration,” Texas Gov. Greg Abbott (R) wrote on Twitter.  

The court’s step toward protecting Title 42 may not be final — in 2021, the Supreme Court ordered the Biden administration to keep implementing the so-called “Remain in Mexico” program.

Nearly a year later, the court made a final ruling that Remain in Mexico — officially known as the Migrant Protection Protocols — could be legally rescinded.

The court’s action on Title 42 was largely expected, since it keeps in place a policy that’s been framed as essential to border security.

“It was August of last year when the Supreme Court overturned [Remain in Mexico]. In the meantime, the administration had to restart the whole thing. That seems even more egregious than Title 42 as it required that action be taken. Title 42 just requires them to keep the status quo in place,” said Adam Isacson, director for defense oversight at the Washington Office on Latin America.

The Biden administration has also fought to keep Title 42 in place, unlike the Remain in Mexico policy, first arguing that Title 42 was a public health imperative and later warning that an unmanageable surge would strike the southern border without the Trump-era policy.

Immigration policy and border security experts have largely sneered at Title 42’s public health bona fides — the policy was revealed to have been put in place after significant political pressure on the Centers for Disease Control and Prevention from Trump White House adviser Stephen Miller.

And the potential surge that would likely come after Title 42 is lifted is more likely to happen because the policy itself created an artificial bottleneck, rather than news of a policy change spurring more migration from Latin America.

Still, migration in the Western Hemisphere is surging regardless of U.S. border policy, in part because of generalized political and economic distress not seen in at least a half century.

“The people that have been bottled up and are coming for the most part are the people that were the top four countries [of origin] in 2019, and they were pushed down by Title 42. They’re gonna push back probably in the next few months to 2019 levels,” said Isacson.

“But in 2019, almost nobody dared to cross the Darien Gap and come up from South America. And now, a quarter million people are doing that in a year. You’ve got one flow on top of the other, the South America flow on top of the old 2019 flow. It’s gonna be a lot for the next several months,” he added.

With Title 42 in place until the legality of the policy gets its final day in court, the Biden administration will be able to continue returning Mexican nationals, as well as nationals of Guatemala, Honduras and El Salvador in most circumstances, to Mexico.

In theory, that should relieve some pressure from the overwhelmed asylum system, as Title 42 allows U.S. border officials to skip asylum processing for migrants from those countries.

It’s also likely to keep attracting single adult border crossers from Mexico, as Title 42 has made it easier for economic migrants — as well as potential criminals and smugglers — to attempt multiple crossings into the United States with few lasting consequences if caught.

“Title 42 was amazing for those people, right? If you’re trying to break the law, or if you’re just trying to be the classic definition of an economic migrant or something like that, you could try twice a day. And there was no consequence,” said Isacson.

Updated at 6:18 p.m.

Tags Biden John Roberts SCOTUS Supreme Court Title 42

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