Supreme Court Justice John Roberts Puts Administrative Hold on End of Title 42 Expulsion

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A small fence separates densely populated Tijuana, Mexico, right, from the United States in the Border Patrol's San Diego Sector (SOURCE: US government photo in public domain)
A small fence separates densely populated Tijuana, Mexico, right, from the United States in the Border Patrol’s San Diego Sector (SOURCE: US government photo in public domain).

Cameron Arcand | The Center Square

Chief Justice John Roberts on Monday put a temporary administrative hold on the Biden’s administration’s plans to end Title 42 enforcement this week.

Roberts gave the administration until 5 p.m. eastern Tuesday to appeal the decision, signaling that the full U.S. Supreme Court wants to decide the matter swiftly.

Title 42 of the United States Code contains policy regarding public health, social welfare, and civil rights, but the recently popular use of the phrase “Title 42” refers to expulsion of illegal immigrants with contagious disease.

Title 42 expulsions apply to people who have recently been in a country where communicable disease is significant. The extent of US federal authority for contagion-related expulsions is set out by law in Title 42 U.S.C. § 265. During the COVID-19 pandemic, the Trump administration used the Section 265 provision to generally block land entry for many migrants. The policy to prohibit asylum seekers from lawfully petitioning for asylum in the United States was continued by the Biden administration with expansion. People subject to Title 42 are not held in crowded staging areas for processing, but are immediately expelled to their country of last transit.

Roberts’ order came after Arizona Attorney General Mark Brnovich, in concert with 18 other states, asked the Supreme Court to prevent the Biden administration from ending Title 42 enforcement at the southern border.

Brnovich and Louisiana AG Jeff Landry “filed an emergency stay application” on Monday in a late attempt to keep the COVID-19 public health order in place. Title 42 allows for the quick removal of some foreign nationals who cross the southern border over pandemic-related health concerns.

“Getting rid of Title 42 will recklessly and needlessly endanger more Americans and migrants by exacerbating the catastrophe that is occurring at our southern border,” the Republican said in a statement.

“Unlawful crossings are estimated to surge from 7,000 per day to as many as 18,000,” he added.

However, his office noted in a news release that a federal appeals court in Washington D.C. shot down a “similar request” on Friday to keep the policy in place.

Brnovich and Landry are joined by Missouri, Alabama, Alaska, Kansas, Kentucky, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Tennessee, Utah, Virginia, West Virginia and Wyoming in the application to the court.

“That termination of Title 42 will cause enormous challenges is thus a view shared even by Federal Respondents’ own lawyers and the Administration’s most ardent supporters,” the application states.

“And the idea that the States will not suffer substantial irreparable harm as a result of the imminent catastrophe that a termination of Title 42 will occasion is therefore fanciful. Indeed, a different district has squarely held otherwise,” it continues.

The policy was intended to be temporary, but it has since become one of the main tools used by border authorities to mitigate the ongoing crisis. Democrats and Republicans alike have criticized the decision to scrap the policy.

If Title 42 is not ordered to continue, then it will end on Wednesday.

Border states such as Texas and Arizona have been preparing for a massive influx of border crossers if and when Title 42 ends.



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