The Biden administration asked the Supreme Court on Tuesday for a delay in the termination of the Title 42 immigration policy, asking for the program to conclude no sooner than next week.
Title 42 was slated to expire on Wednesday but was kept from termination after Chief Justice John Roberts issued a temporary administrative stay Monday following an emergency plea from 19 Republican-led states urging the court to keep the Trump-era policy.
The Department of Justice is still seeking to uphold lower court rulings that held the Biden administration could eliminate the policy but is now asking for a delay in the program’s end, saying it should remain in place until Dec. 27 if the Supreme Court decides the Title 42 case before Friday.
If a ruling comes after Dec. 23, the Biden administration is asking to keep Title 42 in place for two additional days.
THE SUPREME COURT’S FOUR OPTIONS FOR FATE OF TITLE 42 IMMIGRATION POLICY
“In addition, the government respectfully requests that, if the Court denies the application before December 23, it leave the current administrative stay in place until 11:59 p.m. on December 27,” the court filing reads.
DOJ Solicitor General Elizabeth Prelogar told the court Tuesday the administration is ready to use alternative immigration tools to address an expected “temporary” increase in illegal crossings.
“Rather than returning to the immigration system prescribed by Congress, applicants ask this Court to compel the government to continue relying on now-obsolete public-health orders as the Nation’s de facto immigration policy,” Prelogar wrote in court filings.
The Trump-era policy was implemented in March 2020 in response to the coronavirus pandemic and has deterred nearly 2.5 million immigrants since it was implemented in March 2020.
The high court also accepted a pair of amicus briefs on Tuesday, including one from the Immigration Reform Law Institute. The group advocated the GOP states’ arguments to keep the policy after a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit on Friday rejected the states’ bid to suspend the policy’s expected termination.
“The State applicants are likely to prevail on the merits,” attorneys for IRLI wrote, noting that “the circuit court erred in denying intervention as untimely.” The brief also argued the Centers for Disease Control and Prevention’s formation of Title 42 “is reasonable and should be upheld.”
Prior to the circuit court’s rejection, U.S. District Judge Emmet Sullivan ordered the termination of Title 42 in part because the former administration’s CDC leadership “ignore[d] the harm that could be caused,” the judge wrote in his ruling.
Sullivan noted the agency failed to consider other options, such as allowing immigrants to self-quarantine in homes of U.S.-based friends, family, or shelters and noted the CDC should have reexamined its approach when COVID-19 vaccines and testing became more widely available in 2021.
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Included in filings over the case was a response from the American Civil Liberties Union, which argued the states that filed to maintain the policy “do not even try to justify continued Title 42 expulsions on public health grounds.”
“Nor could they, in an era of vaccinations, testing, and greater certainty about the disease. Their concerns arise not from COVID-19, but from immigration itself — and that is a matter to take up with Congress, not this Court,” attorneys for the ACLU added.
