Updated Dec 27, 2022 - Politics & Policy

Supreme Court allows Trump-era border policy to remain for now

Migrants wait at the US and Mexico border wall in El Paso, Texas

Migrants wait at the US and Mexico border wall in El Paso, Texas. Photo: Eric Thayer/Bloomberg via Getty Images

The Supreme Court is forcing the Biden administration to continue the controversial, pandemic-era border policy called Title 42, while legal challenges unfold, according to a Tuesday order.

Why it matters: The expected Dec. 21 expiration of the policy — which has cited the pandemic to allow border officials to rapidly expel migrants and asylum seekers at the border for more than 2.5 years — was delayed after the Supreme Court intervened at the request of Republican challengers.

  • Migrants have been denied access to the asylum process more than 2.4 million times under the order, according to Department of Homeland Security data.
  • The Centers for Disease Control and Prevention (CDC) implemented the policy during the Trump administration to block migrants from coming to the U.S. as a response to the COVID-19 pandemic.

Driving the news: The Supreme Court approved a last-minute effort by 19 GOP-led states to block the termination of Title 42.

  • In a Dec. 20 filing, the Biden administration had urged the high court to let the Trump-era Title 42 border policy end, but requested a two-day buffer to allow them to prepare for the shift in operations.

The big picture: The Biden administration has been preparing for the possibility of as many as 14,000 migrants coming across the border daily after the end of Title 42.

  • But even with Title 42 in place, border resources have been overwhelmed, with the daily number of border crossing surpassing 9,000 multiple times this month.
  • El Paso, Texas, in particular, has been scrambling to find shelter for the thousands of migrants and asylum seekers who have been released into the community — and on the streets — in recent weeks.

Meanwhile, the White House said in a statement Tuesday that it will comply with the Supreme Court's ruling but will continue to prepare for the policy's eventual expiration.

  • "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," the White House said, adding that Congress needs to pass comprehensive immigration reform.
  • The Department of Homeland Security said they'll "continue to fully enforce our immigration laws" but echoed calls for immigration reform in a statement Tuesday.
  • "We will continue to manage the border, but we do so within the constraints of a decades-old immigration system that everyone agrees is broken," the agency said.

Details: In the 5-4 unsigned order, the court said it would hear arguments on the case in the February 2023 argument session.

  • Justices Sonia Sotomayor and Elena Kagan said they would deny the Republican-led states' application without providing explanation.
  • In a dissent, conservative Justice Neil Gorsuch, joined by liberal Justice Ketanji Brown Jackson, wrote, "The current border crisis is not a COVID crisis."
  • "And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort."

What to watch: The Biden administration has been seriously considering both expanding a parole program to Nicaraguans, Cubans and Haitians as well as imposing an asylum ban after the end of Title 42, as Axios previously reported.

  • No final decisions have been made, and the continuation of Title 42 will likely delay the implementation of any new policies.
  • Meanwhile, Republican Congressional efforts to pass legislation that blocked the end of Title 42 as part of the massive $1.7 trillion government funding bill failed.

What they're saying: Immigration advocates say the policy unfairly denies migrants the chance to seek asylum — a human right under the United Nations' Universal Declaration of Human Rights — and they accuse Republicans of wielding Title 42 in an underhanded attempt to crack down on immigration.

  • Republicans, especially those living in the South, have countered that the record surge in border crossings must be stemmed.
  • "Keeping Title 42 will mean more suffering for desperate asylum seekers but hopefully this proves only to be a temporary setback in the court challenge," ACLU attorney Lee Gelernt told Axios.

Editor's note: This story has been updated with additional developments. Sareen Habeshian contributed to this report.

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