Biden Admin Asks Supreme Court to Delay End of Title 42 Border Policy Until After Christmas

At sunset near McAllen, Texas, illegal immigrants who have crossed the Rio Grande surrender to U.S. Border Patrol near an area known as Rincon; from there they will be transported to a processing center, in a file photo. Mani Albrecht/U.S. Customs and Border Protection

The Biden administration asked the U.S. Supreme Court on Tuesday to allow the pandemic-era Title 42 border policy to briefly remain in place for operational reasons until after Christmas.

This comes after the Supreme Court agreed on Monday to the emergency request of 19 Republican-led states to reverse the lower court’s decision to end Title 42, which was set to happen on Wednesday. The stay is administrative and not based on the merits of the case.

Chief Justice John Roberts, a former President George W. Bush appointee, gave the Biden administration until 5 p.m. Tuesday to respond to the emergency application.

The Title 42 emergency public health policy was invoked in March 2020, allowing border agents to block asylum claims at U.S. borders on the grounds of keeping contagious diseases out of the United States amid the COVID-19 pandemic.

The Department of Homeland Security (DHS) argued in a court filing on Tuesday (pdf) that the Title 42 policy is “now-obsolete.” DHS contended that the Republican-led states want the court to compel the government to keep relying on Title 42 “as the Nation’s de facto immigration policy.”

Once the Title 42 policy ends, federal officials acknowledged that “unlawful border crossings” and “temporary disruptions” are likely to increase.

Illegal immigrants walk across the Rio Grande to surrender to U.S. Border Patrol agents in El Paso, Texas, as seen from Ciudad Juarez, Chihuahua state, Mexico, on Dec. 13, 2022. Herika Martinez/AFP via Getty Images

Christmas Delay

The Biden administration asked that if the nation’s highest court decides to end Title 42, it waits until Dec. 27.

DHS argued on Tuesday that transitioning from Title 42 to Title 8 would be difficult to manage over the Christmas weekend due to foreign partners and non-governmental organizations operating with reduced staffing.

DHS described the transition to Title 8 as “a complex, multi-agency undertaking with policy, operational, and foreign relations dimensions that has been paused or partially unwound in light of the administrative stay.”

Title 8 is an immigration policy under which illegal aliens are detained until their immigration proceedings are completed through the immigration court system. Most aliens processed by the Biden administration under Title 8 are being released into the country under a humanitarian parole provision that allows for an immediate work permit.

The Title 42 policy has been used over 2.5 million times to quickly expel illegal immigrants, mainly at the U.S.–Mexico border.

DHS Secretary Alejandro Mayorkas has previously estimated that there may be up to 18,000 migrants per day once Title 42 is repealed.

The group of Republican-led states asked the Supreme Court to keep the policy in place amid an illegal immigration crisis at the southern border. These states have argued that ending the Title 42 policy will cause “irreparable harm.”

“In particular, the greatly increased number of migrants resulting from this termination will necessarily increase the States’ law enforcement, education, and healthcare costs,” their application reads (pdf).

“The likelihood of irreparable harm to the States is underscored by the fact that DHS has requested $3–4 billion in emergency funding to deal with the imminent calamity that the district court’s decision will occasion.”

White House press secretary Karine Jean-Pierre in Washington on Dec. 19, 2022. Brandon Smialowski/AFP via Getty Images

White House Says Border Is Secure

White House officials have maintained that the border is secure.

The end of Title 42 “does not mean the border is open,” White House press secretary Karine Jean-Pierre said on Dec. 20. “Anyone who suggests otherwise is simply doing the work of the smugglers who again are spreading misinformation … which is very dangerous.

“Those who do not have a legal basis to remain will be quickly removed. And so we will continue to fully enforce our immigration laws in a fair, orderly, and humane manner.”

According to preliminary Customs and Border Protection data provided to The Epoch Times, from Dec. 1 through Dec. 19, the border’s two busiest sectors—El Paso and Del Rio in Texas—counted 70,288 illegal alien apprehensions and an additional 28,913 who evaded arrest.

The U.S. Centers for Disease Control and Prevention (CDC) implemented the Title 42 order during the administration of then-President Donald Trump and maintained the policy under President Joe Biden.

The CDC attempted to terminate the policy in May, but the action was halted by a federal judge in Louisiana who ruled in favor of Republican-led plaintiff states that had sought an injunction to keep the policy in place amid the border crisis.

In that Louisiana ruling, Judge Robert Summerhays, a Trump appointee, said the CDC’s move to terminate the policy didn’t comply with the Administrative Procedure Act (APA) that required public notice and time to gather public comment on the plan.

In granting the injunction, Summerhays cited the impact that terminating the Title 42 policy would have on the plaintiff states.

Charlotte Cuthbertson contributed to this report.