By a 5 to 4 vote, the US Supreme Court has ruled to keep the Trump-era border policy known as 'Title 42' in effect (with Conservative Justice Gorsuch joined the liberal Justices in dissent).
The Court also agreed to hear oral arguments and rule on whether individual states can intervene, with a decision due by the end of June.
The Title 42 emergency public health policy was invoked in March 2020, allowing border agents to block asylum claims at U.S. borders on the grounds of keeping contagious diseases out of the United States amid the COVID-19 pandemic.
The decision upends a ruling by activist Democrat judge Emmet Sullivan (of Michael Flynn case fame), who said the Trump-era policy was "arbitrary and capricious."
The Department of Homeland Security (DHS) argued in a court filing on Tuesday (pdf) that the Title 42 policy is “now-obsolete.” DHS contended that the Republican-led states want the court to compel the government to keep relying on Title 42 “as the Nation’s de facto immigration policy.”
States led by the Republican AGs of Arizona and Louisiana filed the emergency request last week after the U.S. Court of Appeals for the District of Columbia Circuit rejected their request to intervene in the case in a bid to prevent the policy from being wound down.
Chief Justice John Roberts on Dec. 19 placed a temporary hold on Sullivan’s ruling while the Supreme Court weighed its next steps.
Here's the order:
Once the Title 42 policy ends, federal officials acknowledged that “unlawful border crossings” and “temporary disruptions” are likely to increase.
The 11th hour intervention will avert a predicted flood of migrants seeking to enter the Untied States at a time when border crossings are been at or near record highs. Without Title 42, immigrants seeking asylum would be able to enter the US - be given a court date for an immigration hearing, and then released into the country - typically never to return for said hearing.
Title 42 allows the government to instead expel migrants while they await their hearings.
Several Democrats, including Sen. Joe Manchin (WV) and California Governor Gavin Newsom, have expressed support for Title 42 - with Newsom warning that the immigration system would "break" if the rule is ended.
Immigrant families are challenging the policy, telling the Supreme Court the restrictions are subjecting people who can’t enter the US to assault, torture, rape and murder.
“The record in this case documents the truly extraordinary horrors being visited on noncitizens every day by Title 42 expulsions,” lawyers at the American Civil Liberties Union Foundation argued for the group.
The GOP-led states called the administration’s approach a “calculated and strategic surrender.”
The states said lifting the restrictions would require them to spend more money on law enforcement and social services.
The administration is separately trying to end the policy through a rule issued in April by the Centers for Disease Control and Prevention. A federal trial judge has blocked that effort, and the case is now before a different appeals court.