The Supreme Court on Tuesday ordered the Biden administration to keep the Title 42 pandemic border expulsion policy up and running while the justices prepare to hear the legal challenge to the policy.
The move imposes a reprieve on a reluctant Biden team, which could use Title 42 to oust immigrants who are in the U.S. illegally. The administration had tried to appease activists by letting the policy expire.
Now, Title 42 will remain in place at least into February, when the justices have scheduled oral arguments. It likely will last even longer as the court then works to formulate its final ruling in the case.
The policy, initiated by the Trump administration at the start of the pandemic, allows border authorities to quickly expel illegal border crossers to stop the coronavirus’ spread. The current administration kept it in place at first, then more recently has fought to revoke it — all while still singing its praises as a tool to combat the border chaos that has erupted on President Biden’s watch.
Immigrant-rights advocates say the expulsions deny legitimate asylum-seekers a chance to make their claims, dooming them to abuse either in Mexico or back in their home countries.
They blasted the justices for intervening.
“For years, Title 42 has proven to be a horrifying distortion of American values, existing as a front for xenophobia and racism,” said Murad Awawdeh, executive director of the New York Immigration Coalition. “This is morally and ethically unacceptable, and the Supreme Court should be ashamed that they continue to sustain such an unsparing policy.”
The White House said it will comply with the high court’s order, but gave a nod to its supporters among the immigrant-rights community, saying the policy should end.
“Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely,” press secretary Karine Jean-Pierre said in a statement.
Title 42 was supposed to expire last week under a lower court ruling, but Chief Justice John G. Roberts Jr. put that on hold while he and his colleagues decided what to do about GOP-led states’ challenge to the district judge’s decision.
The high court said Tuesday that the case before it right now is purely a matter of whether the states, led by Arizona, have the right to intervene in the case at this late stage. But the practical effect of Tuesday’s order is that the policy continues and the Biden team gets more breathing room to try to build a better border system.
Four justices — all three of the court’s Democratic appointees and Justice Neil M. Gorsuch, a Trump appointee, signaled they did not agree with the court’s moves.
Justice Gorsuch penned a dissent saying it wasn’t clear what the high court’s intervention might accomplish.
He said the coronavirus health emergency that Title 42 was intended to solve “has long since lapsed.” That means the case is more about immigration policy than Title 42.
“And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort,” he wrote.
The problem for the Biden administration is that Title 42 proved astoundingly effective at stemming illegal immigration.
When used by the Trump team, it all but ended catch-and-release, the practice of setting immigrants without documentation free inside the U.S. to give them the chance to make claims of protection or otherwise argue against being deported. Border authorities say catch-and-release gives the immigrants what they are seeking — a foothold here — and thus serves as an incentive for more to make the attempt.
Indeed, under the Biden administration, as catch-and-release has soared to tens of thousands of people each month, the numbers at the border have reached cataclysmic levels. Agents have resorted to releasing people without even issuing immigration court summonses.
The latest department data showed authorities caught 233,740 immigrants who were in the country illegally in November.
Less than 30% were ousted under Title 42.
In November 2020, under the Trump administration, authorities nabbed roughly 72,000 illegal border crossers and ousted 88% of them under Title 42.
Estimates this fall put the number of immigrants in the country illegally who have settled in the U.S. since the start of the Biden administration at roughly 1.8 million.
The Biden administration has recognized the power of Title 42, tapping the tool to combat a surge in Venezuelan immigrants who entered the country illegally earlier this year, even as it fought in the courts to eradicate the policy.
Officials had promised to build a new immigration architecture to stem the flow of people. Nearly two years into the administration, that remains a dream.
Homeland Security says it could use another tool, known as expedited removal, to oust immigrants who are in the U.S. illegally. It is similar to the way Title 42 operates.
But expedited removal is anything but quick these days.
According to Homeland Security data revealed by Sen. James Lankford, Oklahoma Republican, just 7% of migrants put into expedited removal this year have been deported. In the Obama years, by contrast, that figure was 69%.
Neither Homeland Security nor U.S. Immigration and Customs Enforcement responded to multiple Washington Times inquiries about that data.
Without a tool to quickly deliver consequences to illegal border crossers, Homeland Security has been reduced to pleading with migrants not to come.
Over the weekend the department warned of frigid temperatures that could threaten those jumping the border.
• Stephen Dinan can be reached at firstname.lastname@example.org.
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