El Paso, Texas — Supreme Court Chief Justice John Roberts on Monday granted an 11th-hour request by more than a dozen Republican-controlled states to temporarily pause a lower court ruling that had ordered the end of a COVID-19 border restriction known as Title 42.
In a one-page order on Monday, Roberts agreed to place on hold a November ruling that declared Title 42 illegal, pending further action from the full court. Roberts gave the Biden administration until Tuesday evening to respond.
A public health law first invoked under former President Donald Trump in early 2020, Title 42 has allowed U.S. border officials to expel hundreds of thousands of migrants, regardless of their intention to apply for asylum, on the grounds that their entry could contribute to the spread of the coronavirus inside the country.
In November, a federal judge in Washington, D.C. declared Title 42 unlawful, giving the Biden administration until Dec. 21 to terminate the rule. That prompted 19 Republican state attorneys general to ask several federal courts to suspend the ruling against Title 42, which GOP lawmakers have praised as an effective tool to deter illegal migration.
After their request was rejected by a federal appeals court in D.C. last week, the states asked the Supreme Court to intervene on Monday.
In their request to the high court, the Republican state attorneys general argued that Title 42’s revocation would precipitate a crisis along the southern border of “unprecedented proportions,” citing government projections that migrant arrivals could spike once the restrictions are lifted.
The states’ concerns have been echoed by Republican lawmakers in Congress and some Democratic politicians, including leaders of border communities like El Paso that have seen a sharp increase in migrant crossings in recent weeks.
Over the weekend, Oscar Leeser, El Paso’s Democratic mayor, declared a state of emergency, citing the hundreds of migrants who have been forced to brave the cold on the city’s streets because of dwindling shelter space.
The Biden administration, for its part, has insisted it is prepared to lift Title 42, saying the restoration of regular immigration procedures, such expedited deportations, will allow the U.S. to gradually reduce migrant arrivals and the high rate of repeat crossings recorded during the pandemic.
Advocates for migrants, meanwhile, have strongly supported the lifting of Title 42, saying the policy’s end will allow the U.S. to fully comply with domestic and international refugee law, which requires officials to screen migrants who say they are fleeing persecution.
In a statement on Monday, the Department of Homeland Security said it would continue to prepare for the termination of Title 42, but that the expulsions would continue for the time being.
“As required by the Supreme Court’s administrative stay order, the Title 42 public health order will remain in effect at this time and individuals who attempt to enter the United States unlawfully will continue to be expelled to Mexico,” the department said.
The Biden administration has faced unprecedented levels of unauthorized migration along the southern border in the past year and half.
In fiscal year 2022, a 12-month span that ended on Sept. 30, the U.S. intercepted migrants more than 2.3 million times along the Mexican border, an all-time high. Over 1 million of those detentions led to migrants being expelled under Title 42, federal statistics show.
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