- A federal court ordered the government to end the Title 42 policy at midnight Wednesday.
- Critics say unwinding the Title 42 policy will bring an influx of migrants to the border.
- Now the Supreme Court will weigh a request from GOP-led states to block the lower court ruling.
WASHINGTON – Nineteen conservative states filed an emergency appeal to the Supreme Court on Monday asking the justices to retain a pandemic policy known as Title 42 that allows the federal government to rapidly expel migrants over concerns about public health.
Put into place by former President Donald Trump and extended by President Joe Biden, the policy was set to expire on Wednesday, but some critics have said lifting it would create chaos at the border. The Title 42 authority has been used to expel migrants more than 2.4 million times since its implementation in early 2020.
After being denied a request by a federal appeals court on Friday, the states are now asking the Supreme Court to temporarily block a lower court ruling that found the policy’s implementation violated the law. The filing was announced by Arizona Attorney General Mark Brnovich.
Will Title 42 expire this week?
What is Title 42?
At issue is a Trump-era policy known as Title 42 that permits Customs and Border Protection to expel migrants without the usual legal review to Mexico or to their home countries to prevent the spread of COVID-19 in holding facilities. The Trump administration implemented the policy in the early days of the COVID-19 pandemic and the Biden administration extended parts of the policy in August 2021.
In April of this year, the Biden administration moved to terminate the policy, asserting that while earlier phases of the pandemic “required extraordinary actions,” advances in vaccines and therapeutics allowed the country to embrace “more normal routines.” The move prompted lawsuits and, in May, a federal judge in Louisiana blocked the Biden administration from ending the policy.
What have courts said about Title 42?
While the Louisiana case over Biden’s effort to wind down the policy was pending at the U.S. Court of Appeals for the 5th Circuit, another federal court in Washington, D.C., tossed out the underlying policy. U.S. District Judge Emmet Sullivan ruled in November that the government broke the law with how it created the program.
Sullivan also ruled that his decision would not take effect until Wednesday, giving the government time to prepare. Biden appealed the ruling – even though the administration opposes relying on Title 42 now – because it wants to preserve its ability to do so in the future. The administration indicated that, despite its appeal, it would end the program on Wednesday.
Conservative states then stepped in, seeking to be a part of the lawsuit and temporarily block Sullivan’s ruling. Late Friday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit denied that request. Two of the appeals court judges were nominated by Democratic presidents and a third was a Trump appointee. It is that decision the states are now appealing to the Supreme Court.
What happens next with Title 42 at the Supreme Court?
The states are asking the Supreme Court to move more quickly than it normally does, even on emergency matters. The court has recently issued what is known as an administrative stay after getting such requests, giving the parties more time to submit their written arguments. If the court goes that route, it would have the effect of temporarily keeping the Title 42 policy in place while the case is decided but it doesn’t necessarily indicate which way the high court is leaning.
Story Credit: usatoday.com