White House tells Supreme Court there is no longer ‘justification’ left for Title 42
The Biden administration argued to the Supreme Court Tuesday that the controversial Title 42 health policy had outlived its usefulness and should be allowed to expire — but also requested delaying its end until after Christmas.
“The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings,” Solicitor General Elizabeth Prelogar wrote in response to Chief Justice John Roberts’ Monday order temporarily keeping the policy in place after 19 GOP-led states filed an “eleventh-hour” emergency appeal.
“The government in no way seeks to minimize the seriousness of that problem,” Prelogar added. “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.”
In the 44-page filing, Prelogar argued that the states wrongly wished to keep the policy in place “as a makeshift immigration-control measure.”
“Rather than returning to the immigration system prescribed by Congress, applicants ask this Court to compel the government to continue relying on now-obsolete public-health orders as the Nation’s de facto immigration policy,” wrote the solicitor general.
Roberts had given the Biden administration until 5 p.m. to respond to the states after he temporarily stayed a DC federal court ruling from last month that ordered the program’s end on Dec. 21.
The chief justice can now either deny the states’ application on his own, or — more likely — refer the matter to the full court for consideration.
In its filing, the White House laid out a revised timeline for lifting Title 42 if the high court denies the states’ application.
If the court rejects the appeal before Friday, the policy would end at 11:59 p.m. Dec. 27. If the appeal is denied on Friday or after, Title 42 would go away on the second business day after the order is issued.
“That brief continuation of the stay would allow the government to again prepare for a full return to operations,” said Prelogar.
Title 42, which was instituted in March 2020 by the Centers for Disease Control and Prevention, allowed for the summary expulsion of migrants to Mexico on the grounds that they could spread COVID-19. The policy has since been used to turn away almost 2.5 million migrants without first hearing their asylum cases.
The restrictions have applied to all nationalities but have fallen disproportionately on citizens of countries that Mexico has agreed to take back: Guatemala, Honduras, El Salvador and, more recently Venezuela, in addition to Mexico itself.
Immigration advocates have argued both that the policy violates obligations under US and international law to assist people trying to escape persecution — and that it is outdated as coronavirus treatments improve.
Activists led by the American Civil Liberties Union sued to end the policy’s use. Senior US District Judge Emmet Sullivan sided with them and set the Dec. 21 deadline. An initial appeal by the states was rejected last week by a three-judge panel, forcing them to make their last-ditch request to Roberts.