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The Supreme Court ruled by a 5-4 vote to keep Title 42 in place just hours ahead of its planned midnight Wednesday end.
The Covid-era public health policy that allows border agents to immediately expel migrants will now remain in place until legal battles involving its end play out in court.
Agents will now be able to use the policy to expel border crossers for at least the next several months, leaving an onslaught of migrants who were expected to rush the U.S.-Mexico border after Title 42 was lifted in limbo.
Justice Neil Gorsuch joined the more liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson to vote against keeping it in place.
The high court agreed to hear oral arguments in February on whether 19 GOP-led states should be allowed to intervene in defense of the policy in lower courts. A final decision is due by June.
Pictured migrants eat and wait for help while camping on a downtown street in El Paso, Texas, December 27
Migrants from Venezuela line up in the cold weather for hot drinks and food from volunteers at a makeshift camp on the U.S.-Mexico Border in Matamoros, Mexico, Friday, Dec. 23
Republican state officials had said a large increase in migrants would burden their states, giving them the right to intervene and argue on behalf of Title 42.
‘No one reasonably disputes that the failure to grant a stay will cause a crisis of unprecedented proportions at the border,’ the filing says. ‘The idea that the States will not suffer substantial irreparable harm as a result of the imminent catastrophe that a termination of Title 42 will occasion is therefore fanciful.’
Tuesday’s decision puts a judge’s decision to allow the Trump-era policy to end on hold. Title 42 has been used to expel more than 2.4 million migrants since 2020.
Washington-based U.S. District Judge Emmett Sullivan had said the Centers for Disease Control and Prevention’s implementation of the policy was now ‘arbitrary and capricious.’ He said the Republican states had waited too long to intervene.
Sullivan’s ruling was due to go into effect December 21 before the court extended it to the 27, then until the legal battle is through.
States led by Republican attorneys general of Arizona and Louisiana filed an emergency request last week after the U.S. Court of Appeals for the District of Columbia Circuit turned down their request to intervene in the case to argue against its end.
Biden administration officials have repeatedly insisted that the federal government is ready for the end of Title 42, but Republicans and even some Democrats have claimed that President Joe Biden nor his advisers are grasping the full urgency of the situation.
White House press secretary Karine Jean Pierre issued a statement after the court’s order: ‘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.
She said that Title 42 should not be ‘extended indefinitely,’ even as the decision staved off utter chaos at the border while the Biden family jets off for a vacation in St. Croix.
‘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. Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.’
With Title 42’s looming end, thousands of migrants have flooded across the border and are now encamped on the streets of El Paso and elsewhere in frigid winter conditions.
State and local officials have sounded alarms about overflowing shelters and thinning resources.
ABC reported earlier this month that the Department of Homeland Security (DHS) is preparing for scenarios where as many as 18,000 people cross the border per day after Title 42 is lifted.
DHS put out a statement on Tuesday evening with a warning: ‘People should not listen to the lies of smugglers who take advantage of vulnerable migrants, putting lives at risk. The border is not open, and we will continue to fully enforce our immigration laws.’
The Biden administration first tried to wind down the policy in April as it argued vaccines and therapeutics had ended the Covid-19 emergency that warranted the policy.
The Biden administration claims it has rushed resources to the border and instructed agents to rely on other immigration code – namely Title 8 – to carry out expulsions. They have called on Congress to allocate more than $3 billion to to speed up processing of backlogged asylum claims and move migrants from overcrowded facilities.
Solicitor General Elizabeth Prelogar acknowledged to the high court last week that ending the policy would pose a challenge but said there’s no basis to keep Covid-era rules in place.
‘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,’ Prelogar wrote in a filing with the Supreme Court.
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