Supreme Court orders Title 42 to remain in place

The U.S. Supreme Court granted a stay of a federal judge’s order requiring the Biden administration to end expulsions under the Title 42 public health order instituted at the beginning of the COVID-19 pandemic.

The court foreshadowed an oral argument in the case, instructing the court clerk to schedule a date in February 2023 for litigants to make their cases at the Supreme Court. In the meantime, the use of Title 42 will continue.

Chief Justice John Roberts previously issued  an administrative stay and effectively blocked the termination of the order that has been used to expel illegal immigrants millions of times.

The Biden administration had asked the U.S. Supreme Court to permit the federal government to cancel Title 42, contending the nearly two dozen Republican states in favor of the policy should pursue legislative changes through Congress.

In November, U.S. District Judge Emmet Sullivan in Washington, D.C. ordered the federal government to stop using Title 42 to return illegal immigrants to Mexico by December 21. A panel of appellate judges backed Sullivan, but Roberts stayed his decision days before it was to take effect.

Since the Centers for Disease Control and Prevention (CDC) announced the end of the use of Title 42 this spring, Republicans have been doing legal gymnastics to try to force the federal government to keep it in place. Before the CDC’s decision, the Biden administration defended the policy against interest groups that characterized it as an inhumane relic of former President Trump’s tenure.

Previously in a separate case, Texas Attorney General Ken Paxton and Republican attorneys general from other states convinced another federal judge in Louisiana, Robert Summerhays, to force the Department of Homeland Security to continue using Title 42.

Border security has been politically perilous for Biden as he seeks to fulfill campaign pledges to make the U.S. more welcoming to refugees and others while responding to a soaring rate of illegal immigration and fentanyl trafficking.

The GOP has blasted Biden’s efforts, accusing him of enacting “open border” policies. The White House contends the Republican rhetoric on border security is driving the perception that the border is not secure. Republicans, including Paxton and members of Texas’ congressional delegation, say that loosening deportation guidelines, canceling the “Remain in Mexico” policy, ending the use of Title 42, and other such measures are creating incentives for people to cross the border illegally.

The use of Title 42 has presented its own challenges, including an increase in repeated unlawful crossings due to the lack of judicial consequences for those who enter the U.S. illegally. Mexico has also agreed to accept individuals from a limited number of countries.

Tens of thousands of people of numerous national origins are reportedly waiting in proximity to the border for the Title 42 order to be terminated.

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