Chief Justice Keeps Title 42 in Place at Border for Now

December 20, 2022 by Dan McCue
Chief Justice Keeps Title 42 in Place at Border for Now
Two young migrants from Venezuela share a coloring book while waiting for help in downtown El Paso, Texas, Sunday, Dec. 18, 2022. (AP Photo/Andres Leighton)

WASHINGTON — Chief Justice John Roberts on Monday issued a temporary order granting a request from Republican officials in 19 states to block the Biden administration from letting Title 42 expire at 12:01 a.m. on Wednesday.

The order was cheered by the petitioning states as it will keep in place for now a Trump-era public health emergency measure that allows the government to expel migrants seeking asylum who cross the southern border illegally.

Last month, U.S. District Judge Emmet Sullivan ruled the measure, which was imposed by the Centers for Disease Control and Prevention to stem the rise of the coronavirus, did little to advance that cause while posing a much greater danger to immigrants.

It was Sullivan who set the deadline for ending the program.

On Friday, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia rejected the state’s request for an emergency stay, holding that they’d waited too long to intervene in the underlying case, which had been brought by migrant families seeking to end the expulsions.

The states then turned to Roberts, who issued an administrative stay to give the full court time to consider whether to overturn the lower court’s ruling and keep the program in place.

At the same time, he called for a response from the government to the state’s petition by 5 p.m. today, suggesting the court will move swiftly to resolve the case.

In their petition, the states argued the failure to grant a stay would “cause a crisis of unprecedented proportions at the border.”

They noted that there has already been a surge of migrants approaching the border in anticipation of the end of Tile 42, and media reports in recent days have shown several thousands camped out in tents waiting for the legal wrangling in Washington to be resolved.

If Title 42 is allowed to end, the states predict daily illegal crossings by migrants “may more than double,” dramatically increasing the states’ “law enforcement, education and health care costs.”

In a statement, Rebecca Cassler, senior staff attorney for the Immigrant Justice Project at the Southern Poverty Law Center, said she was “deeply dismayed” that the Supreme Court had issued the emergency stay.

“The United States and most individual states have lifted nearly all policies and restrictions related to the COVID-19 pandemic, yet COVID-19 continues to be used as a pretext to block access to the asylum process at the border,” Cassler said. “This is contrary to the United States’ fundamental and decades-old commitment to the rights of people seeking asylum and protection, and it inflates a public perception of a crisis at the border for political ends. 

“Every day that the Title 42 policy is in place has real, life-threatening consequences for people attempting to seek refuge in the U.S. Today’s Supreme Court decision allows those harms to continue. We urge the court to swiftly change course and permit the policy to end once and for all,” Cassler added.

During her daily White House briefing with reporters, hours before Roberts’ ruling, Press Secretary Karine Jean-Pierre declined to comment directly on the states’ petition in order to avoid “getting ahead of any legal determinations.”

Jean-Pierre went on to note, however, that the administration has asked Congress for $3.5 billion to beef up resources at the border and deal with the crisis.

“If Republicans in Congress are serious about protecting the border, if they are serious about securing the border, if they are serious about the challenges that we’re currently seeing, then they should be able to get involved here and make sure that the men and women of the Department of Homeland Security have the resources they need to do their jobs,” she said.

Jean-Pierre went on to say the Department of Homeland Security has already deployed additional agents and processing capabilities to El Paso, Texas, and that 23,000 agents are working to secure the southern border.

“That’s a historic number of agents,” she added. “The most we’re ever seen doing this work.”

“DHS has also put in place technologies like linear ground detection systems and automated surveillance towers, and is increasing security at ports of entry. They’re also adding 10 soft-sided CBP holding facilities,” she said.

Jean-Pierre said if Congress provides the additional $3.5 billion the administration is seeking, activity will “scale up” dramatically.

“We’ll see additional air and ground transportation capabilities to move migrants from processing to less crowded Border Patrol sectors.

“We’ll quickly remove those who don’t have a legal basis to remain. We’ll set up additional Customs and Border Patrol holding facilities to speed up processing times so individuals can have their asylum claims heard faster. We’ll hire more than 300 additional agencies, and secure additional technologies and equipment, and increase our support for border cities and towns,” she said.

The White House spokeswoman emphasized that even if Title 42 does go away, it does not mean the border is open. 

“Anyone who suggests otherwise is simply doing the work of these smugglers who, again, are spreading misinformation, which is very dangerous,” Jean-Pierre said. “When Title 42 goes away, we will go back to Title 8, which allows a process to make sure that people can make their asylum claims heard.”

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue

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