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Supreme Court agrees to prop up asylum limits from early pandemic

Without high court involvement, the border policy favored by conservative states would have expired Wednesday.

WASHINGTON (CN) — A group of Republican-led states won a stay from the Supreme Court on Monday, stopping the Biden administration from unraveling an immigration policy that was intended to slow the spread of coronavirus. 

Signed by Chief Justice John Roberts, the order entered just before 5 p.m. contains no accompanying opinion. It directs the secretary of Homeland Security to submit a response brief within 24 hours.

The legal battle over Title 42 began with a challenge by immigration advocates. A federal judge ultimately struck down the policy as “arbitrary and capricious,” but the Biden administration secured a delay that in turn inspired a challenge from 19 conservative-led states. Arizona, Louisiana, Texas and the others have sought an emergency order to stop the administration from reopening the border. The D.C. Circuit rejected the states' appeal Friday, propelling the states to apply to the Supreme Court on Monday for emergency relief.

“No one reasonably disputes that the failure to grant a stay will cause a crisis of unprecedented proportions at the border,” Elizabeth Murrill, Louisiana’s solicitor general, wrote in the states’ application. “DHS [The Department of Homeland Security] estimates that daily illegal crossings may more than double from around 7,000/day to 15,000/day once Title 42 is terminated.”

Former President Donald Trump had implemented the policy called Title 42 in March 2020, as the eruption of the Covid-19 pandemic ground all but essential business to a halt. On the basis of public health, the policy has restricted asylum seekers from entering the United States, leaving them to congregate in shelters on the Mexico border.

It remains in place even as President Joe Biden has unwound several other of his predecessor's strict immigration policies, and other pandemic-minded policies have met similar fates. With the impending termination of Title 42, however, both Republicans and members of Biden’s Democratic Party have raised objections.

Murrill wrote for the Republican-led states Monday that the administration's plans are riddled with contradictions, and that they circumvent notice-and-comment rules under the Administration and Procedure Act.

“In the last year alone, the United States has told this Court both that (1) the APA does not authorize vacatur as a remedy and (2) nationwide injunctions are impermissible,” Murrill wrote. “Yet the district court granted both a vacatur and a nationwide injunction.” 

These contradictions, according to the brief, show that the government is trying to have its cake and eat it, too. 

“The United States’ ‘it’s legal when we say it’s legal’ premise lacks any pretense of propriety,” Murrill wrote. “And its too-cute-by-half tactic of taking an appeal only after the States sought intervention, then moving to hold that appeal in indefinite abeyance, is not substantively different from outright capitulation.” 

The policy would have expired Wednesday without action from the justices. The states’ application offered the justices a myriad of options. As they have done with other shadow-docket cases this term, the justices took the option of entering a stay while they consider the case further. Murrill seemed to push for a writ of certiorari, noting another immigration fight the justices already heard this term. 

“The scale of the impacts on the immigration system are thus at least as great as in United States v. Texas where this Court granted certiorari before judgment, necessarily concluding that the issues were of ‘imperative public importance … requir[ing] immediate determination in this Court,’” the lawyer wrote. “Given the at-least-equivalent impacts here, this case readily satisfies the traditional standard for ordinary post-judgment certiorari.” 

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