On Tuesday, President Joe Biden’s administration told the Supreme Court that Republican state officials have no right to oppose the decision to end the Title 42 programme, which allows the government to quickly deport migrants attempting to enter the country due to concerns about the spread of COVID-19.
The filing by the administration is the latest development in a battle over Trump-era policy, which is taking place amid a chaotic scene on the southwest border as officials brace for an influx of migrants if Title 42 is lifted. That was supposed to happen on Wednesday, but the Supreme Court intervened at the last minute, putting the program’s fate in doubt.
The states “do not claim to be seeking to vindicate any interest in public health or slowing the spread of COVID-19,” the administration’s brief to the court stated. “Instead, they openly admit that they intend to use the Title 42 orders as an impromptu immigration-control measure.”
The administration acknowledges “that the termination of the Title 42 orders will likely result in disruption and a temporary increase in illegal border crossings,” the administration told the court. “However, the solution to that immigration problem cannot be to indefinitely extend a public-health measure that everyone now recognises 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 halted the Biden administration’s plans to end the policy late Monday. Roberts requested a response from the federal government by Tuesday evening, just hours before the programme was set to expire.
In its filing Tuesday, the administration requested that if the court denies the states’ request before Friday, it extend the short-term stay until 11:59 p.m. on December 27, effectively postponing the end of Title 42 for a few more days. “That brief continuation,” the government said, “would allow the government to re-evaluate its readiness for a full return to operations.”
Roberts’ one-page order provided no indication of how the Supreme Court will rule on the states’ request. The high court is expected to issue a more permanent decision in the coming days.
Title 42 allows Customs and Border Protection agents to deport migrants to Mexico or their home countries without the usual legal review in order to prevent the spread of COVID-19 in holding facilities. Title 42 has been used to deport over 2.4 million migrants since its implementation in 2020, and it has trapped tens of thousands of migrants in Mexican border cities who are awaiting asylum in the United States.
The Biden administration announced in April that it would phase out the policy because vaccines and therapeutics had reduced the virus’s impact.
While Washington speculated on how the Supreme Court might rule, elected officials along the border said they expected the programme to end at some point. Mayor Oscar Leeser of El Paso, Texas, said the city would continue to provide humanitarian and logistical assistance to migrants released by Border Patrol. As Border Patrol encounters in the region reached 2,500 per day, Leeser declared a state of emergency.
Meanwhile, there was confusion across the border. Some migrants in Juárez reported hearing that the border would “close” on Wednesday, while others reported that it would “open.” People staying in shelters over the weekend told stories of friends who had been deported to Mexico and others who had been granted permission to remain in the United States.
Kelson Joseph, who has been in Juárez for the past year waiting for a change in US immigration policy, was among those who waited.
On Monday, Joseph stood on the Rio Grande’s south bank and looked north. The 26-year-old Haitian had travelled across the Western Hemisphere, first working in Brazil and then at a Juárez assembly plant. His Mexican work permit had expired, and he longed to see friends and family in California.
“”I’ve been afraid to cross because there have been so many deportations,” Joseph explained in Spanish. However, some claim that it will be simpler (after Title 42 ends). I’m just waiting to see what happens. I’m going to try crossing when I hear it’s a good time.”
The Title 42 litigation has put the Biden administration in an unusual position: on the one hand, it appears to want to end the programme. On the other hand, it has drawn criticism from Republicans and some Democrats who are concerned that border officials will be overwhelmed by new migrants seeking asylum.
Officials from the Department of Homeland Security say they have scrambled resources to the border, but the White House is also pleading with Congress for more funding to deal with an increase in migrants.
In court, the administration has appealed a ruling from a U.S. District court last month ordering it to halt the expulsions, despite the fact that it had planned to do so on its own. According to experts, the appeal is based on the principle that an administration should have the authority to implement similar programmes in the future.
The White House announced Tuesday that Biden will visit Mexico next month to meet with Mexican President Andrés Manuel López Obrador. Biden will attend the North American Leaders Summit in Mexico City in January.