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

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.