COVID is no longer strong rationale, U.S. says, for limiting asylum
Gov't offered argument about 24 hours after Republican-led states warning of a 'crisis at the border' won emergency relief from high court
The Biden administration urged the Supreme Court on Tuesday not to stand in the way as it finally retires a policy of limiting immigration on the grounds of public health.
While Republican-led states have accused the government of ignoring public input as it moves against policy implemented under former President Donald Trump at the start of the COVID-19 pandemic, U.S. Solicitor General Elizabeth Prelogar says there is no basis to have an outdated order shape federal immigration policy.
“Rather than returning to the immigration system prescribed by Congress, applicants ask this Court to compel the government to continue relying on now-obsolete public-health orders as the Nation’s de facto immigration policy,” the government’s brief.
COVID-19 was at the heart of the government's mind when it adopted the policy known as Title 42. But Prelogar says the states seeking to keep the policy in place are only interested in limiting asylum seekers from entering the U.S., not in protecting public health.
“Applicants do not claim to be seeking to vindicate any interest in public health or slowing the spread of COVID-19,” Prelogar wrote. “Instead, they candidly acknowledge that they wish to use the Title 42 orders as a make-shift immigration-control measure: They assert that a full return to the immigration rules Congress prescribed in Title 8 would cause a surge in border crossings, which would in turn lead applicants to expend more resources on social services and law enforcement.”
Immigration advocates who want the policy to be retired meanwhile note that 12 of the state challengers contest COVID-19’s emergency status.
“The States do not assert that expulsions are currently justified on public health grounds,” Lee Gelernt, an attorney with the American Civil Liberties Union Foundation, wrote in a brief for migrants. “To the contrary, twelve of them recently told this Court that, ‘even assuming the COVID-19 pandemic at some point qualified as a ‘national emergency,’ certainly it does not qualify today, when American life is mostly indistinguishable from what it looked like in pre-pandemic times.’”
It was immigration advocates who began the legal battle over Title 42, suing the administration on behalf of migrants stuck at the southern border. They won in District Court — a federal judge called the Trump-era policy “arbitrary and capricious," but the Biden administration delayed Title 42’s conclusion to prepare for a possible influx of migrants entering the country. This set the stage for 19 Republican-led states to open their own challenge. Led by Arizona, the states attempted to secure an emergency order halting the administration’s action.
The D.C. Circuit denied emergency relief for the states on Friday, and Homeland Security Secretary Alejandro Mayorkas was set to dissolve Title 42 on Wednesday had Chief Justice John Roberts not entered a stay this week.
“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.”
Title 42 is one of the remaining immigration policies from former President Donald Trump that has not been repealed by President Joe Biden. Trump implemented Title 42 in March 2020 in an attempt to limit the transmission of COVID-19. The policy has resulted in many migrants congregating in shelters on the Mexico border waiting for its conclusion. Lawmakers worry ending Title 42 could lead to a surge in asylum requests that the government lacks the resources to process.
Prelogar concedes that illegal border crossings could increase with an end to Title 42 but says it plans on utilizing immigration law prescribed by Congress instead of indefinitely relying on a public health order.
“The government in no way seeks to minimize the seriousness of that problem,” she wrote. “But the solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification. Instead, it is to rely on the immigration laws Congress has prescribed in Title 8. The government is prepared to do that, including by surging resources and invoking its Title 8 authorities to implement new policies in response to the temporary disruption that is likely to occur whenever the Title 42 orders end.”
The states said the justices should stymy the government’s action unwinding Title 42, but also suggested this case was ripe for their review. The government says the states would have to prove the court had a reason to take up the case and reverse the lower court ruling.
“Applicants’ disagreement with the government’s decision to pursue the course applicants themselves previously advocated rather than seeking a stay does not justify intervention,” Prelogar wrote. “Indeed, applicants recognized that point when the shoe was on the other foot: They joined the government in opposing intervention by an advocacy group that sought to stay the preliminary injunction preventing CDC from terminating the Title 42 orders.”
The government requested that if the justices ruled in its favor, the administrative stay be kept in place for a short period to allow the administration to prepare for a return to normal immigration operations.