U.S. Supreme Court leaves pandemic-era border restrictions in place and takes up case

Dec 27 (Reuters) – The U.S. Supreme Court on Tuesday left in place for the time being a pandemic-era order allowing U.S. authorities to quickly deport migrants captured at the U.S.-Mexico border to determine whether 19 states could challenge the end of the policy.

The court, by a 5-4 vote, granted a request by a group of Republican state attorneys general to stay a judge’s decision striking down the emergency order known as Title 42 while he was considering whether they could intervene to challenge the decision.

States had argued that lifting the policy could lead to an increase in already-record border crossings.

U.S. Supreme Court Chief Justice John Roberts, a member of the court’s 6-3 conservative majority, on December 19 issued a temporary administrative stay maintaining Title 42 while the court considers whether to maintain the policy in place longer. Prior to his order, the policy was set to expire on December 21.

Conservative Judge Neil Gorsuch joined the three liberal members of the court — Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson — in opposing Monday’s order leaving Title 42 in effect.

The Title 42 ordinance was first implemented in March 2020 under former Republican President Donald Trump at the start of the COVID-19 pandemic.

US President Joe Biden, a Democrat, kept restrictions in place for more than a year after taking office in 2021 despite promising to walk away from the sweeping immigration policies enacted by Trump.

U.S. Border Patrol officers apprehended a record 2.2 million migrants at the southwest border in fiscal year 2022, which ended September 30. Nearly half of those arrested were promptly deported under the Title 42 policy.

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

Separately, a group of asylum-seeking migrants represented by the American Civil Liberties Union (ACLU) had sued the government over the policy, arguing that deportations to Mexico exposed them to serious harm, such as kidnapping or attacks.

In that case, U.S. District Judge Emmet Sullivan in Washington, DC, sided with the migrants on November 15 and ruled that Title 42, which has been used to deport hundreds of thousands of people since its inception , was illegal.

Sullivan, an appointee of former Democratic President Bill Clinton, said the government had failed to show that the risk of migrants spreading COVID-19 was “a real problem”. He said the government also failed to weigh the harms asylum seekers would face because of the Title 42 order.

The Biden administration has been looking for time to prepare for the end of the policy, when migrants might again, as they had before the pandemic, be allowed to seek asylum at the border. Sullivan gave it until December 21.

Unhappy with the lower court’s decision, a group of Republican attorneys general sought to step in to continue defending the policy in court. When a federal appeals court on Dec. 16 refused to allow them to intervene and stay Sullivan’s order, they took the case to the U.S. Supreme Court.

Reporting by Nate Raymond in Boston Editing by Chris Reese and Aurora Ellis

Our standards: The Thomson Reuters Trust Principles.

Nathalie Raymond

Thomson Reuters

Nate Raymond reports on federal judiciary and litigation. He can be reached at [email protected]

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