Supreme Court refuses to lift Trump-era rule at the southern border


A divided Supreme Court refused Tuesday to lift the Trump-era rule that has turned away migrants at the border as a public health threat.

By a 5-4 vote, the justices granted an appeal from Arizona and 18 other Republican-led states that sought to keep Title 42 in place to prevent a new surge of migrants.

The court agreed to hear arguments in February from the GOP states, but its order suggests the Biden administration may seek to change the policy if it chooses to do so.

Last month, a federal judge in Washington set aside the Trump rule adopted in March of 2020, holding it can no longer be justified now that the pandemic has faded. His decision would have lifted Title 42 and gave hope to thousands of migrants who had come to the U.S.-Mexican border anticipating they would be able to make a claim for asylum.

But the court on Tuesday blocked that decision from taking effect.

“This stay precludes giving effect to the District Court order setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy,” the court said in an unsigned order.

Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Ketanji Brown Jackson dissented and said they would have allowed the Title 42 rule to end.

The court’s order dashes the hopes of migrants who fled Venezuela, Cuba, Haiti, Nicaragua and other countries that are beset by chaos and political turmoil.

The Biden administration told the court that it is prepared to send more agents to the border to screen migrants who seek asylum and to turn back those who cannot show they are fleeing persecution.

However, the GOP states predicted a “crisis of unprecedented proportions at the border” if Title 42 is lifted.

The government concedes it does not have the space to detain the tens of thousands of migrants who pass the initial screening, and they are usually released until their hearing is scheduled before an immigration judge. That process usually takes many months or even several years.

Until today, most of the court’s conservatives have been skeptical of the government’s use of the pandemic to enforce broad changes in the law. For example, they struck down a Biden administration rule that put a moratorium on housing evictions, and they stalled his student loan forgiveness plan, which was justified as a response to the pandemic.

But only Justice Gorsuch voted to end the reliance on a public health policy at the border.

Title 42 is a provision in the public health law that dates to 1893 and the effort to prevent the spread of cholera. As amended in 1944, the law authorized the surgeon general to “prohibit … the introduction of persons or property” from countries where contagious diseases are rampant.

President Trump declared COVID-19 to be a national emergency, and the White House ordered the Centers for Disease Control and Prevention to authorize barring entry by “non-citizens” who arrived at the border without visas or other proper documents.

That rule has remained in effect, even as the pandemic has waned and President Biden replaced Trump.

Last month, however, a federal judge in Washington set aside the rule and held that the COVID-19 pandemic could no longer justify preventing migrants from claiming asylum. Judge Emmet Sullivan agreed to a five-week delay before his ruling took effect. He set Dec. 21 as the deadline.

The U.S. appeals court in a 3-0 decision refused to lift the deadline.

In response to the appeal from Arizona and the 18 other GOP states, Chief Justice John G. Roberts Jr. issued an “administrative stay” on Dec. 20 to put the matter on hold for a few days so the full court could decide.

The case was Arizona vs. Mayorkas.

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