What the Supreme Court’s decision on Title 42 means


The Supreme Court has punted a brewing debate over immigration policy until the spring with its decision to keep a Trump administration border measure in place that restricts the flow of migrants into the United States.

The court ruled on Tuesday that Title 42, which for the last two years allowed the government to expel migrants who might otherwise qualify for asylum because of the COVID-19 pandemic, must remain in place.

The decision is a win for Republican officials who opposed lifting the rule, and is a reprieve of sorts for the Biden administration, which had faced growing questions from lawmakers about whether it was prepared to handle the influx of migrants that was expected to follow the end of the rule.

Here’s what you need to know about the rule and how the Supreme Court’s decision will affect what’s happening at the southern border.

A Trump and pandemic-era rule

Title 42 was first implemented by the Trump administration during the onset of the pandemic in early 2020, allowing for the rapid expulsion of migrants at the southern border. 

Officials in both the Trump and Biden administrations have described it as a public health measure, but immigration advocates have argued it is an immigration enforcement tool under the guise of a public health protocol that is keeping migrants fleeing violence and poverty from legally entering the U.S.

Title 42 specifically allows the government to turn away on public health grounds migrants requesting asylum without giving them a hearing. In practice, it has been used against migrants from a number of countries who might have real grounds for asylum, including people from Cuba, Venezuela, Nicaragua and Haiti, among other countries.

The Biden administration sought to lift the policy, and it was set to do so on Dec. 21. But the Supreme Court issued a temporary stay on Dec. 19 to keep it in place. The court’s Tuesday ruling extends the stay at least until February, when it will hear arguments from 19 mostly GOP-led states that oppose the lifting of Title 42.

Buying time

The decision buys time for the White House, which had said for weeks it was preparing for the end of Title 42 but was facing pressure over its readiness for the expected surge of migrants at the southern border.

Officials had yet to release detailed plans about how it might handle an influx of people.

“The Supreme Court’s order today keeps the current Title 42 policy in place while the Court reviews the matter in 2023. We will, of course, comply with the order and prepare for the Court’s review,” press secretary Karine Jean-Pierre said in a statement.

“At the same time, we are advancing our preparations to manage the border in a secure, orderly, and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration,” Jean-Pierre added.

A surge is expected because without Title 42, thousands of people seeking asylum should under U.S. law be able to request and receive a hearing on their claims.

President Biden said a decision on Title 42 was overdue, and that his administration would continue to enforce the measure.

But the ruling does not solve Biden’s problems completely. Many of those who have been turned away have not simply returned to their home countries, and a final court decision to lift the policy could come in the early summer, when border apprehension numbers are often at their highest.

The White House did not criticize the court over the decision, however, and officials will now have several more weeks to prepare for the end of the policy at a time when Republicans are hammering the administration over its immigration policies.

Legislation

Biden has faced calls from Republicans to visit the border, which they say is at a point of crisis.

There have been a record number of apprehensions at the southern border in recent months. Customs and Border Patrol figures show authorities made 233,740 immigration arrests in November, one of the highest monthly totals recorded.

Officials have called on Congress to pass immigration reform that would provide needed funding for border officials and upgrade what the White House believes is a broken system. But such legislation is extremely unlikely to pass through a divided Congress in the coming months.

The Department of Homeland Security said in a statement Tuesday that the border “is not open, and we will continue to fully enforce our immigration laws.”

“We will continue to manage the border, but we do so within the constraints of a decades-old immigration system that everyone agrees is broken,” DHS said. “We need Congress to pass the comprehensive immigration reform legislation President Biden proposed the day he took office.”

A blow to advocacy groups

In the meantime, the ruling is a blow to advocacy groups who have called for an end to Title 42 for years.

Activists and civil rights groups believe Title 42 was deployed by the Trump administration as a way to use the pandemic to curb immigration, and that the policy has left migrants who would qualify for asylum languishing as they flee violence, poverty and other harsh circumstances.

Lee Gelernt, a lawyer for the American Civil Liberties Union leading a challenge to Title 42, called it a “horrific policy that has caused so much harm to asylum seekers and cannot plausibly be justified any longer as a public health measure.”

Patric Gaspard, head of the Center for American Progress Action Fund, an influential progressive think tank, blamed Republicans for politicizing the issue and blocking efforts on immigration reform.

Gaspard argued there is “no scientific or public health rationale to continue Title 42 because migrants are no more likely than any other travelers to spread COVID-19, making it an ineffective strategy for stopping the pandemic or enhancing border security.”

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