After Chief Justice John Roberts on Monday temporarily halted the termination of Title 42, one of the most effective policies for thwarting illegal immigration, the fate of the Trump-era rule rests in the hands of the nine-member Supreme Court.
In response to 19 Republican-led states asking for an administrative stay over the policy that allowed the government to expel millions of immigrants from U.S. borders expeditiously, Roberts moved to prevent Title 42 from dissolving and asked for a response from the Biden administration by 5 p.m. on Tuesday.
States accused the Biden administration of using “collusive, underhanded litigation tactics” to achieve its goal of revoking the policy without complying with federal procedural laws. The states further argued the Biden administration stopped defending Title 42 after U.S. District Judge Emmet Sullivan issued an order last month to end the rule by Dec. 21, which was first enacted in March 2020 in a bid to turn away immigrants quickly during the pandemic.
SUPREME COURT HITS PAUSE ON END OF TITLE 42 AFTER PLEA FROM GOP STATES
States also warned that removing the policy could triple the number of daily border crossings in the country, as the policy has contributed to turning away nearly 2.5 million immigrants since 2020.
Title 42 was slated to expire on Wednesday, but with the administrative stay, which is strictly procedural, Roberts is likely to refer the matter to the full court, and the administrative stay can remain in place for as long as the justices need to make a decision on the challenge to Title 42. Roberts can also make a decision to end the administrative stay on his own.
As the Title 42 policy remains in legal limbo, here are the options before the Supreme Court:
COURT COULD HEAR ORAL ARGUMENTS
If the justices decide to take up the case for broader consideration, the legal dispute could last for months.
It’s unclear how the full court would rule on the Title 42 matter, but the justices have already toiled with immigration policies twice this year and have signaled some favor toward the Biden administration in previous cases.
ROBERTS COULD END STAY AFTER BIDEN RESPONSE
In the event that the Biden administration supplies a sufficient response to the GOP-led challenge against Title 42, Roberts could also lift the stay on his own without referring the matter to the full court.
Previously, Roberts temporarily shielded former President Donald Trump’s tax returns from being obtained by a House committee on Nov. 1 but ultimately rejected his emergency appeal 21 days later.
ALLOWING TITLE 42 TO END
After a response from the White House, Roberts will examine both arguments in the case and consider whether to drop the administrative stay or prolong it depending on whether he refers the matter to the full court and if it decides to take up the case.
White House press secretary Karine Jean-Pierre said Monday that the administration would have more details Tuesday about its shifting border policy plans as Title 42 is set to expire. She reiterated that the United States would continue to enforce its immigration laws amid the surge of immigrants at the border.
But the administration’s response could influence what the high court decides after its latest move to impose the administrative stay. Sen. John Cornyn (R-TX) told Fox News Tuesday that the Biden administration has signaled a “secret plan” to help border agents mitigate the influx of immigrants but said, “I think the secret is they have no plan.”
Meanwhile, the threat of Title 42’s end has prompted Democratic leaders, including New York Mayor Eric Adams, to speak out against ending the policy, saying he expects 1,000 more immigrants arriving to the city per week if the policy expires and warning it could affect certain public services.
KEEPING THE PANDEMIC-ERA IMMIGRATION POLICY
If the administrative stay is extended indefinitely after the Biden administration’s response to the Supreme Court, it could tee up the dispute for oral arguments before the end of the present high court term in June.
In Sullivan’s November order, he argued Centers for Disease Control and Prevention’s use of the policy to prevent people from accessing the asylum process is “arbitrary and capricious” and a violation of the law because it was not implemented properly.
The Supreme Court’s response to previous immigration cases heard this year provides some insight into how the justices have treated the executive branch’s purview of enforcing border policies.
For example, a divided court ruled in late June the Biden administration had the discretion to end one of Trump’s immigration policies dubbed “Remain in Mexico,” which sent people seeking asylum at the U.S.-Mexico border back to Mexico to await a hearing in U.S. immigration court.
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Still, the case before the justices in June was sent back to a lower court to determine whether the Biden administration complied with procedural requirements in unwinding the immigration rule, which is formally the Migrant Protection Protocols. On Dec. 15, U.S. District Judge Matthew Kacsmaryk again put the Biden administration’s efforts to end the MPP on hold.
Most recently, the high court heard arguments in a challenge to a 2021 policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. The justices are expected to render a ruling on that case sometime next year.
