The U.S. Supreme Court on Tuesday upheld for now a pandemic-era policy that allows U.S. officials to quickly deport migrants caught at the U.S.-Mexico border. In a 5-4 vote, the court granted a request by Republican attorneys general to delay a judge’s decision striking down the emergency public health order known as Title 42.
Nineteen states say repealing the policy could lead to an increase in already record border crossings and strain the resources of states where migrants end up. The court said it would hear arguments on whether states could raise Title 42 defenses at its February meeting. A verdict is expected by the end of June.
President Joe Biden said the US government would have to enforce the order until the matter was resolved. “But I think it’s overdue,” he said. Chief Justice John Roberts, a member of the justices’ conservative 6-3 majority, issued a temporary administrative stay on Dec. 19 preserving Title 42 while the court considered whether to maintain the policy longer. Before his order, it was set to expire on December 21.
Conservative Justice Neil Gorsuch joined the court’s liberal members — Sonia Sotomayor, Elena Kagan and Ketanya Brown Jackson — in dissent, calling Tuesday’s order “unwise.” He questioned why the court was rushing to hear a dispute over “emergency decrees that have outlived their usefulness,” saying the only likely reason was that states argued Title 42 would help ease an “immigration crisis.”
“But the current border crisis is not a COVID crisis,” Gorsuch wrote in an opinion piece joined by Jackson. “And courts should not be concerned with upholding administrative edicts designed for one emergency merely because elected officials have failed to address another emergency.” Mexico’s Foreign Ministry did not immediately comment on the court’s decision.
2.5 million deportations since March 2020
The International Rescue Committee aid group said in a statement that Title 42 had been used to justify nearly 2.5 million deportations since March 2020, arguing that US border policies had caused significant tension across the region, making migration routes more deadly.
Title 42 was first implemented in March 2020 under former Republican President Donald Trump when the COVID-19 pandemic began. The Democratic Biden administration initially kept it in place, but sought to repeal it after US health authorities said in April it was no longer needed to prevent the spread of COVID-19. But the repeal was blocked by a federal judge in Louisiana a Trump appointee in response to a Republican-led legal challenge.
Enrique Lucero, Tijuana’s director of migration affairs, said it was “absurd” that Title 42 remained in place, noting that the city has a large backlog of asylum seekers from the US. “This measure has to disappear sooner or later,” he said. Miguel Colmenares, a Venezuelan migrant in the Mexican border city of Tijuana, said after hearing the court’s decision that he did not know what he would do.
“I have no money and my family is waiting for me,” said the 27-year-old. “It breaks my heart that we have to keep waiting.
An asylum-seeking group of migrants represented by the American Civil Liberties Union sued the US government over the policy, arguing that deportation to Mexico exposed them to serious harm, such as kidnapping or assault. In that case, U.S. District Judge Emmet Sullivan in Washington, DC, sided with the migrants on Nov. 15, ruling that Title 42 is illegal. Sullivan, an aide to former Democratic President Bill Clinton, said the government had failed to demonstrate that the risk of migrants spreading COVID-19 was a “real problem.” It also failed to consider the harm asylum seekers would face from Title 42, he said.
