The Supreme Court said Tuesday that the controversial Trump-era border restriction known as Title 42 will remain in effect while legal challenges play out, a move that ensures that federal officials will be able to continue to swiftly expel migrants at US borders at least for the next several months.
The 5-4 order is a victory for Republican-led states that urged the Supreme Court to step in and block a lower court opinion that ordered the termination of the authority. The Biden administration has said it was prepared for the authority to end and had put in place precautions to guard against confusion at the border and any potential surge of migrants.
Since March 2020, Title 42 has allowed US border agents to immediately turn away migrants who have crossed the southern border in the name of Covid-19 prevention.
Immigrant advocates and public health experts have long denounced use of the public health authority along the US southern border, arguing it was an inappropriate pretext for barring migrants from entering the United States. In nearly three years, the authority has been used over 2 million times to turn migrants away, according to US Customs and Border Protection.
At the border, migrants have been waiting in encampments in Mexico for months, anticipating the end of the authority so they can make their claim of asylum in the US. Immigrant advocates have tried to disseminate updates and information to migrants, but desperation has grown, especially as temperatures drop.
El Paso, Texas, has been at the center of the crisis as thousands of migrants have crossed that region of the border. The city opened government-run shelters at its convention center, hotels and several unused schools to care for migrants, though some have still had to sleep on the streets in cold temperatures.
The Department of Homeland Security has been putting in place a plan for the end of the authority that includes surging resources to the border, targeting smugglers and working with international partners.
Solicitor General Elizabeth Prelogar acknowledged to the Supreme Court last week that returning to traditional protocols along the border will pose a challenge, but said there’s no longer a basis to keep the Covid-era rules in place.
“The government in no way seeks to minimize the seriousness of that problem. 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,” Prelogar wrote in a filing with the Supreme Court.
Lawyers for the American Civil Liberties Union, who are representing families subject to Title 42, underscored the dangers faced by asylum seekers subject to the authority and sent back to Mexico.
“The record in this case documents the truly extraordinary horrors being visited on noncitizens every day by Title 42 expulsions,” wrote Lee Gelernt, a lawyer for the families.
“The States’ argument effectively boils down to an assertion that Title 42 – with no hearings and no access to asylum – is a better immigration control system from their perspective than the actual immigration statutes that Congress has enacted,” Gelernt added.
The GOP-led states, meanwhile, argued that they’d be harmed by the lifting of the authority because of the influx of migrants entering the United States.
“The border crisis that Respondents bizarrely and eagerly seek to cause would also inflict enormous harms to the States,” a filing, submitted last Wednesday, reads.
This is a breaking story and will be updated.