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Supreme Court denies Biden request to end Title 42 border rule

In a setback for the Biden administration’s open border policy, the Supreme Court on Tuesday allowed Title 42, the Trump-era immigration and public health order.

Biden had fought for an end to the policy which gives the government special power to turn away illegal migrants at the border. Even with the policy in place, about one out of every 100 people now living in the United States has entered the country through the southern border during the Biden administration.

Title 42 ruling splits court

The high court voted (pdf) 5–4 to grant an emergency request from 19 Republican state attorneys general who sought to intervene in defense of the rule, putting on hold a ruling by District of Colombia Judge Emmet Sullivan, a Clinton appointee, that allowed the rule to expire last week.

Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson voted against granting the request, while Justices John Roberts, Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett voted in favor. Last week, Roberts, the chief justice, paused the plan to give the Supreme Court more time to look into the issue.

“The stay itself does not prevent the federal government from taking any action with respect to that policy,” the short, unsigned order said Tuesday. “The Court’s review on certiorari is limited to the question of intervention. While the underlying merits of the District Court’s summary judgment order are pertinent to that analysis, the Court does not grant review of those merits, which have not yet been addressed by the Court of Appeals.”

A two-page dissent, written by Gorsuch, stated that the District of Columbia Court’s “intervention ruling takes on whatever salience it has only because of its presence in a larger underlying dispute about the Title 42 orders,” adding that it is “unclear what we might accomplish.”

The 19 states had argued that lifting the policy could lead to an increase in already-record border crossings. Texas Gov. Greg Abbott, meanwhile, pleaded with the Supreme Court and other courts to keep the rule intact, warning that it would lead to a surge in illegal immigration.

The Title 42 order was first implemented in March 2020 under former President Donald Trump at the beginning of the COVID-19 pandemic. President Joe Biden kept the restrictions in place for more than a year after taking office in 2021 despite promising to shift away from immigration policies adopted by Trump.

U.S. Border Patrol agents apprehended a record 2.2 million migrants at the southwest border in the 2022 fiscal year, which ended Sept. 30, data shows. Most of those were allowed to enter the country.

In a statement following the Supreme Court decision, White House Press Secretary Karine Jean-Pierre said the administration will comply with the order and prepare for the court’s review.

“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,” Jean-Pierre stated.

Her comments contradict administration policies that critics say have made the border less secure.

The Biden administration sought to lift Title 42 after U.S. health authorities said in April that the order was no longer needed to prevent the spread of COVID-19, but was blocked by a Trump-appointed federal judge in Louisiana, in response to a Republican-led legal challenge.

GOP state officials asked the high court to intervene and block the White House’s plans to scrap the rule. They said that a significant increase in illegal aliens crossing the U.S.–Mexico border would place undue burdens on their states.

“As the Louisiana court already found, the termination of the Title 42 System will cause the States irreparable harm,” the states wrote (pdf). “The likelihood of irreparable harm to the States,” their petition added, “is underscored by the fact that [the Department of Homeland Security] has requested $3-4 billion in emergency funding to deal with the imminent calamity that the district court’s decision will occasion.”

–Wire services


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