US Supreme Court maintains Trump-era border rules allowing swift migrant deportation

Title 42, a controversial policy introduced during the Covid-19 pandemic, was about to expire, but Republican states mounted a legal challenge that justices will resolve next year, effectively allowing expulsions until then

US Supreme Court
A young migrant on the border between Mexico and the United States, near Yuma (Arizona).REBECCA NOBLE (AFP)

The US Supreme Court is keeping pandemic-era limits on immigration in place indefinitely, dashing hopes of immigration advocates who had been anticipating their end this week.

In a ruling Tuesday, the Supreme Court extended a temporary stay that Chief Justice John Roberts issued last week. Under the court’s order, the case will be argued in February and the stay will be maintained until the justices decide the case.

The limits, often referred to as Title 42 in reference to a 1944 public health law, were put in place under then-President Donald Trump at the beginning of the pandemic. Under the restrictions, officials have expelled asylum-seekers inside the United States 2.5 million times (it is possible that any given individual has been expelled more than once) and turned away most people who requested asylum at the border on grounds of preventing the spread of Covid-19.

The decision comes as thousands of migrants have gathered on the Mexican side of the border, filling shelters and worrying advocates who are scrambling to figure out how to care for them.

The White House said it will comply with the court’s decision, adding that “at the same time, 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,” in the words of White House Press Secretary Karine Jean-Pierre.

Migrants camp out at night in freezing temperatures in downtown El Paso near a bus station.
Migrants camp out at night in freezing temperatures in downtown El Paso near a bus station.PATRICK T. FALLON (AFP)

Immigration advocates sued to end the policy, saying it goes against American and international obligations to people fleeing to the US to escape persecution. They also argued that the policy is outdated as coronavirus treatments improve.

The conservative-majority Supreme Court voted 5-4 to extend the temporary stay that keeps Title 42 in place. The three progressive justices, Sonia Sotomayor, Elena Kagan and the recently appointed Ketanji Brown Jackson, voted against. So did one of Trump’s conservative appointees, Neil Gorsuch.

The ruling Tuesday said specifically that the Supreme Court will review the issue of whether the states have the right to intervene in the legal fight over Title 42. Both the federal government and the immigration advocates have argued that the states waited too long and even if they hadn’t, that they don’t have sufficient standing to intervene.

In a dissent, Justices Neil Gorsuch and Ketanji Brown Jackson said that even if the court were to find the states have the right to intervene and Title 42 was lawfully adopted “.... the emergency on which those orders were premised has long since lapsed.” The judges said the “current border crisis is not a Covid crisis.”

In November, a federal judge sided with advocates and set a December 21 deadline to end the policy. Conservative-leaning states appealed to the Supreme Court, warning that an increase in migration would take a toll on public services and cause an “unprecedented calamity” that they said the federal government had no plan to deal with.

Roberts, who handles emergency matters that come from federal courts in the nation’s capital, issued a stay to give the court time to more fully consider both sides’ arguments.

The federal government asked the Supreme Court to reject the states’ effort while also acknowledging that ending the restrictions abruptly would likely lead to “disruption and a temporary increase in unlawful border crossings.”

The precise issue before the court is a complicated, largely procedural question of whether the states should be allowed to intervene in the lawsuit. A similar group of states won a lower court order in a different court district preventing the end of the restrictions after the Centers for Disease Control and Prevention announced in April that it was ending use of the policy.

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