U.S. Supreme Court keeps Title 42, the pandemic-era policy to quickly turn away migrants, for now

The U.S. Supreme Court ruled Tuesday that the Biden administration has to continue with an emergency health order the federal government has used for more than two years to quickly turn away migrants, including those seeking asylum, at the southwest border.

The latest ruling comes after Chief Justice John G. Roberts last week halted the lifting of the health order, known as Title 42, which the Biden administration had planned to wind down. Roberts’ order came after an Arizona-led coalition of 19 states, including Texas, asked the Supreme Court to intervene.

Title 42 will remain in place for at least several more months. In its Tuesday order, the high court agreed to hear arguments in February on whether the group of states can challenge a lower-court ruling that ordered the Biden administration to lift Title 42 — a ruling that will remain blocked until the court makes a decision on the states’ challenge.

The Tuesday ruling came down on a 5-4 vote, with Justice Neil Gorsuch joining the court’s three liberal justices in opposing the majority’s decision.

The Supreme Court weighed in after a federal judge previously ordered the Biden administration to end the use of Title 42, which the Trump administration invoked in March 2020 as the COVID-19 pandemic began — calling it a necessary step to help stop the virus’ spread in immigrant detention centers. Dr. Anthony Fauci, the nation’s top infectious disease expert, has since said that immigrants are not driving up the number of COVID-19 cases.

Immigration officials have used the health order more than 2 million times to expel migrants, some of whom have been removed multiple times after making repeated attempts to enter the U.S. Under Title 42, the recidivism rate — the percentage of people apprehended more than once by a Border Patrol agent — has increased from 7% to 27% since fiscal year 2019.

Last month, Judge Emmet Sullivan of the U.S. District Court in Washington, D.C., ruled that the Centers for Disease Control and Prevention’s use of the order — which removes migrants from the U.S. without allowing them to access the asylum process — is “arbitrary and capricious” and a violation of the law because it was not implemented properly.

Sullivan ordered the Biden administration to immediately lift Title 42, then later agreed to give the federal government until Dec. 21 to prepare for the change.

Sullivan’s ruling stems from a lawsuit filed in January 2021 by the American Civil Liberties Union and two Texas-based immigrant rights groups that argued Title 42 violated U.S. asylum laws and that the Trump administration used the pandemic as a pretext to invoke Title 42 and use it as an immigration tool.

Another federal court also weighed in on Title 42 after Arizona and 18 other states filed a federal lawsuit on April 3 in Louisiana, asking a judge to stop the government from lifting Title 42. Texas filed a separate lawsuit on April 22 seeking the same thing, but dropped its lawsuit and joined the other states’ suit.

In May, U.S. District Judge Robert R. Summerhays blocked the Biden administration from ending Title 42. The administration appealed, and that case remains pending in the 5th U.S. Circuit Court of Appeals.