Biden Admin Asks Supreme Court to Drop Title 42 Immigration Case

A Border Patrol agent instructs illegal immigrants who crossed the Rio Grande into El Paso, Texas, as seen from Ciudad Juarez, Mexico, on Dec. 19, 2022. John Moore/Getty Images

The Biden administration urged the Supreme Court on Feb. 7 to dismiss 19 states’ challenge to the cancellation of the pandemic-era Title 42 policy that allows rapid expulsion of would-be migrants at the border.

The administration argued that its plan to terminate the public health emergency on May 11 would make the case moot. The high court will hear the appeal on March 1.

Open-borders and humanitarian groups say the Title 42 policy prevents those fleeing persecution and violence in their home countries from obtaining legal due process when they arrive in the United States; however, the states say withdrawing the policy would flood already overburdened border facilities with even more illegal aliens.

The states previously told the high court that failing to uphold the policy “will cause a crisis of unprecedented proportions at the border” and that “daily illegal crossings may more than double.”

Before he left office in early January, Arizona Attorney General Mark Brnovich, one of the architects of the legal strategy to keep the policy alive, told The Epoch Times that the states were intervening because the federal government was failing to maintain order at the border.

“And the bottom line is ... that if [President] Joe Biden is not going to do his job, then [we] have to do everything we can. Because what is going on at our southern border, obviously, is costing us not only fiscally, but it’s costing us in human lives lost. And so it is a life and death issue,” Brnovich, a Republican, said at the time.

Days before that, the Supreme Court blocked the rescission of the policy, which has been used to expel more than 2 million individuals, and scheduled oral arguments in the case, Arizona v. Mayorkas, for March 1.

“The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render this case moot,” U.S. Solicitor General Elizabeth Prelogar stated in a filing (pdf) with the court on Feb. 7.

Responding to Republican proposals in Congress to end the national emergency and public health emergency that were declared by the Trump administration three years ago, Biden’s Office of Management and Budget (OMB) said on Jan. 30 that it would extend the soon-to-expire emergencies to May 11 “and then end both emergencies on that date.”

Ending the twin emergency declarations would curb some of the federal agencies’ expansive powers in managing the government’s response to the COVID-19 virus and return agency operations to something closer to normal. Republicans, who took over the U.S. House of Representatives last month, say the emergencies aren’t justified and should be ended sooner.

But before that, under the Trump administration in March 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued an emergency order under Title 42 of the U.S. Code regarding individuals recently in a country where a communicable disease is present. This allowed the government to promptly return individuals illegally crossing the border to Mexico without a formal hearing on the theory that their presence may pose public health risks.

Prelogar added, “The government has also recently announced its intent to adopt new Title 8 policies to address the situation at the border once the Title 42 orders end.”

Illegal aliens apprehended by U.S. Customs and Border Protection (CBP) are generally processed under Title 8 but they can face prosecution if they illegally reenter the United States. Those expelled under Title 42 without a hearing face no further legal consequences.

“Expulsions under Title 42 are not based on immigration status and are tracked separately from immigration enforcement actions, such as apprehension or inadmissibility, that are regularly reported by CBP,” according to the agency.

The Biden administration reluctantly continued enforcing the Title 42 order after Biden assumed the presidency in January 2021 but on April 1, 2022, the new administration said it would end the order by May 23, 2022. Courts blocked the decision to rescind the order and the policy continued in effect at the border.

On Nov. 15, 2022, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia ruled that the Title 42 policy was unlawful and blocked it, finding the government had failed to show that suspending normal immigration laws was justified.

Responding to an emergency application by Republican attorneys general in 19 states, led by Arizona and Louisiana, on Dec. 19, 2022, Chief Justice John Roberts issued a temporary stay preventing the Biden administration from dropping Title 42. On Dec. 27, 2022, the full Supreme Court extended the stay, voting 5–4 to issue an emergency order allowing the program to continue.

Christopher J. Hajec, director of litigation for the Immigration Reform Law Institute (IRLI), which filed a friend-of-the-court brief (pdf) supporting the states, said he doubted the Biden administration’s stated intention to end the Title 42 program would matter to the Supreme Court.

“I don’t think the Court will be influenced by the government’s claim that the case will become moot on May 11. That may or may not actually happen; the government could always change its mind and continue the emergency,” Hajec told The Epoch Times in an emailed statement.

“The Court will focus on the narrow issue before it: whether the states had a right to intervene to protect the Title 42 program. While the Court considers that question, the district court’s erroneous injunction of Title 42 will continue to be delayed.”

The Supreme Court previously allowed the Biden administration to end the Trump-era “Remain in Mexico” policy that required non-Mexican asylum-seekers arriving at the southern border to wait in Mexico for processing.

On June 30, 2022, the high court held in Biden v. Texas that Biden’s decision to nix the program didn’t violate a 1996 migrant detention law.