Biden Asks Supreme Court To End Title 42 But With Delay

December 21, 2022

The Biden Administration on Tuesday asked the Supreme Court to allow Title 42, the Covid-era policy for expelling migrants at the border, to end—but not before a brief delay until at least after Christmas.

Title 42 is a decades-old clause in the health code that allows the government to take emergency action to stop the “introduction of communicable diseases” into the U.S., but it had been rarely used until the Trump Administration implemented it as an immigration policy when the Covid pandemic struck. The Biden Administration continued its use, invoking it to expel migrants more than 2 million times, although many were repeat border-crossers.

In filing its brief, the Administration acknowledged that ending Title 42 would likely lead to “disruption and a temporary increase in unlawful border crossings” but asked the Court to reject efforts by a group of conservative-leaning states to keep the policy in place.

Based on those states’ requests, Chief Justice Roberts on Monday night put a pause on Wednesday’s DC Circuit Court-ordered end to the Title 42 expulsion policy.

In issuing the pause, Roberts gave the Department of Homeland Security (DHS) and immigrant advocates until 5pm Tuesday to respond to the request from Republican state officials. 

The call for responses typically means that the full Court will be involved in deciding the matter.

Administration officials have been racing to develop alternative policies to replace Title 42 restrictions in an effort to ensure that border communities and government immigration facilities are not overrun by migrants who believe they will have an easier time crossing into the U.S. But even with the deadline approaching, officials had not yet completed those plans this week, sources tell The New York Times.

The Times further reports on a debate inside the Biden White House. Officials within DHS and others favored more restrictive border policies aimed at deterrence, while other officials want to offer more opportunities to cross the border legally. 

Some Administration officials have even privately argued for the continued use of Title 42, according to the Times. Officially, however, the Justice Department has pledged to abide by court rulings saying it must end. In their filing to the Supreme Court on Tuesday, DOJ lawyers argued that the conservative states did not have the legal standing to challenge the DC Circuit judge’s decision in the case.

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