The Biden administration told the Supreme Court Tuesday that the justices should reject an emergency bid by a group of GOP-led states to keep the controversial Trump-era border restriction known as Title 42 in effect while legal challenges play out.
But it also asked for the court to delay the ending of Title 42 until at least December 27, citing ongoing preparations for an influx of migrants and the upcoming holiday weekend.
The administration said that the states, led by Arizona, do not have the legal right to challenge a federal district court opinion that had vacated the program and ordered its termination by Wednesday.
Chief Justice John Roberts temporarily froze that deadline on Monday, and asked the parties involved in the lawsuit, the Justice Department and the American Civil Liberties Union, to weigh in.
Until the Supreme Court issues an order – which can come at any time, although the court has no deadline – the authority will remain in place.
Since March 2020, Title 42 has allowed US border agents to immediately turn away migrants who have crossed the southern border illegally, all in the name of Covid-19 prevention. There have been nearly 2.5 million expulsions – mostly under the Biden administration, which has been bracing for an influx of arrivals if the authority lifts.
The last-minute legal wrangling comes as federal officials and border communities have been bracing for an expected increase in migrant arrivals as early as this week as the issue of immigration continues to ignite both sides of the political divide. The Department of Homeland Security has been putting in place a plan for the end of the program that includes surging resources to the border, targeting smugglers and working with international partners.
In court papers Tuesday, Solicitor General Elizabeth Prelogar stressed that it would be highly unusual for the court to allow the states to step in at the last minute when they had not been an official party in the dispute at hand.
“The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings,” Prelogar wrote.
“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,” she wrote.
Large group of migrants cross into El Paso
Lawyers for the ACLU, who are representing families subject to Title 42, also urged the justices to deny the states’ appeal.
“The record in this case documents the truly extraordinary horrors being visited on noncitizens every day by Title 42 expulsions,” Lee Gelernt, a lawyer for the families, wrote.
“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. “But again, that is a choice for Congress.”
The White House has been preparing for Title 42 to end, expecting a flow of migrants crossing the US-Mexico border. In the Del Rio sector, for example, officials predicted that the number of migrant encounters could double from 1,700 a day to 3,500 a day when Title 42 ends, straining overwhelmed resources in a remote area of the border.
Despite the freeze from Roberts on Monday decision, the administration is moving forward with planning, CNN has reported.
“We’re going on as if nothing’s changed,” a senior US Customs and Border Protection official told CNN, adding that policy discussions are still underway to provide other legal pathways to Nicaraguans, Haitians and Cubans who make up a large number of encounters.
As for what happens on Wednesday if the expiration is still on hold, one official said there may be a “mini surge.”
“I think there’s some that probably haven’t gotten the message and won’t until they cross,” the official said. “There are some already committed who will cross.”
Late Friday night, the US Court of Appeals for the District of Columbia Circuit ruled against the states, holding that they waited an “inordinate” amount of time before trying to get involved in the case. That order triggered the emergency application at the high court, which was addressed to Roberts.
Arizona Attorney General Mark Brnovich – who took the lead for the states – said Monday that “getting rid of Title 42 will recklessly and needlessly endanger more Americans and migrants by exacerbating the catastrophe that is occurring at our southern border,” adding: “Unlawful crossings are estimated to surge from 7,000 per day to as many as 18,000.”
Brnovich had told the justices in court papers that they should put the lower court ruling on hold. As an alternative, he said that the justices should grant an “immediate” temporary injunction to maintain the status quo and also consider whether to skip over the appeals court and agree to hear arguments on the merits of the issue themselves.
“Failure to grant a stay here will inflict massive irreparable harms on the States, particularly as the States bear many of the consequences of unlawful immigration,” Brnovich argued.
In the case at hand, six families that unlawfully crossed the US-Mexico border and were subject to the Title 42 process brought the original challenge.
In court papers, the ACLU previously argued that Covid-19 was always a thinly veiled pretense to increase immigration control. “There is no legal basis to use a purported public health measure to displace the immigration laws long after any public health justification has lapsed.”
Meanwhile, although the Biden administration objects to the states’ attempt to intervene in the ongoing dispute and has said it is prepared to allow the program to end, it is still appealing the district court opinion to preserve the authority of the government to impose public health orders in the future.
This story has been updated with additional details.