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Monday, June 17, 2024 | Back issues
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Asylum policy squabble nixed mysteriously from high court docket

No explanation has been offered for why the justices no longer plan to focus on the pandemic-era Title 42 program, which uses public health as a basis to limit immigration.

WASHINGTON (CN) — The Supreme Court will no longer hear a fight between the Biden administration and several red states over the conclusion of a pandemic-era immigration policy. 

With no explanation, the justices removed the case Thursday from an upcoming oral argument session. The move comes after the Biden administration told the justices that the case would be moot come May, when the U.S. will officially end its designation of the Covid-19 virus as a public health emergency. 

“The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render this case moot: Because the Title 42 order would have ‘expired by its own terms,’ this suit seeking only prospective relief would ‘no longer present[] a ‘live case or controversy,'" U.S. Solicitor General Elizabeth Prelogar wrote in a brief to the court earlier this month. 

Experts suspect this could be the reason for the court’s schedule change, however, the court did not explain or respond to inquiries concerning the change. The Department of Justice also did not respond to requests for comment. 

“I think it's pretty clear that Title 42 will end on May 11 when President Biden ends the national Covid emergency,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone call. “It'll have no legal basis after that.” 

It’s not clear if the court will provide some kind of ruling concluding the case, but there is a stay in place that prevents the Biden administration from ending Title 42. This stay was originally intended to extend until the court heard arguments and handed down an opinion in the case. Whether the stay remains necessary is not clear. 

“The Supreme Court put the stay in effect through the end of oral arguments of the case but now in having suspended oral arguments, this just keeps the policy in effect indefinitely,” Aaron Reichlin-Melnick, policy director at the American Immigration Council, said in a phone call. “Now, it is quite likely that Title 42 will end on May 11th when the public health emergency expires, however, that's not a guaranteed date. A lot of things can happen between now and May 11, and if the May 11 date is pushed back for any reason, that would keep Title 42 in effect even longer under this stay.” 

It was former President Donald Trump who activated Title 42 in early 2020, at the start of the Covid-19 pandemic, to restrict asylum requests on the basis of public health. The policy has left migrants in a holding pattern at the border, and Republicans and Democrats alike have expressed concern about the end of Title 42 creating result in an influx of immigration that would stretch government resources beyond capacity. 

Immigration advocates initiated the suit while Trump was still in office, calling the policy a misuse of public laws. A federal judge called the policy arbitrary and capricious, striking it down in November. After the Biden administration said it would not appeal the ruling, 19 Republican-led states jumped to intervene and save the policy. The D.C. Circuit declined the state’s emergency request to halt the administration from winding down Title 42. 

When the states then appealed to the Supreme Court,Chief Justice John Roberts paused the lower court ruling and ordered briefing from the government. A slim majority of the justices then agreed to add the case to the high court’s docket, but the high court agreed to resolve the case only if the 19 states had a basis to intervene in the suit without addressing the merits of the Title 42 arguments. 

Title 42 has been scrutinized by immigration advocates for blocking pathways to asylum. Leaving migrants in limbo at the Mexican border has increased violence for asylum seekers. Human Rights First reported over 10,300 cases of murder, rape, kidnapping, torture and other violent acts in just over a year and a half. Migrants were also reported to have lacked medical care, food, and housing while in Mexico. 

Last month the Biden administration broadened its use of Title 42 in a diplomatic agreement with Mexico. Migrants from Cuba, Haiti, and Nicaragua were not initially included under Title 42, but Biden’s new agreement allowed the administration to send 30,000 of these asylum seekers back to Mexico each month. 

The conclusion of Title 42 would force the administration to revert back to its normal processing procedures under the Immigration and Nationality Act. It is unclear, however, how Biden’s new proposal with Mexico will work under Title 8. 

“The Biden administration has indicated that it may have reached a deal with Mexico to allow him to deport individuals to Mexico who are not from Mexico who have gone through the expedited removal process under Title 8,” Reichlin-Melnick said. “So the exact ways in which they would carry that out remains unclear and the legal authority they have to do that is uncertain.” 

Follow @KelseyReichmann
Categories / Appeals, Government, Law, National

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