U.S. Supreme Court temporarily keeps Title 42 immigration program in effect

WASHINGTON — The U.S. Supreme Court is keeping Title 42 in place until the justices can review whether the pandemic-era program should be lifted or continue.

Supreme Court Chief Justice John Roberts in an order on Monday stayed a lower court’s ruling that would have allowed the program, which was put in place by the Centers for Disease Control and Prevention during the Trump administration, to expire on Wednesday. 

Title 42 allows border patrol officers to turn away migrants, including asylum seekers, at the border under the CDC’s public health authorities. 

If and when to end the program, which was tied to the COVID-19 pandemic, has been the subject of lawsuits for the past few months after the Biden administration announced earlier this year the CDC would sunset the program.  

A U.S. district court in mid-November ruled the federal government couldn’t continue the program, with Senior District Judge Emmet G. Sullivan writing the policy was “arbitrary and capricious in violation of the Administrative Procedure Act.”

As a part of the ongoing court cases, 19 states, including Arizona, filed an emergency application for a stay earlier Monday, saying the district court’s ruling “further warrants review given the enormous national importance of this case and the crisis that a denial of a stay is certain to cause here.”

Arizona Attorney General Mark Brnovich said in a written statement announcing the emergency stay application that “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.”

In addition to Arizona, the attorneys general for Alabama, Alaska, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming filed the request for a Supreme Court stay. 

The Biden administration has until Tuesday at 5 p.m. to respond to the decision. 

White House Press Secretary Karine Jean-Pierre said during a press briefing Monday afternoon before the announcement that the U.S. Department of Homeland Security was “surging resources to the border” ahead of the expected end of Title 42 on Wednesday. 

Jean-Pierre said the Biden administration had “additional, robust planning underway” for the end of the public health designation, but pressed Congress to approve $3.5 billion in additional funding to help the federal government respond to an expected increase in the number of migrants seeking asylum at the U.S.-Mexico border. 

The additional funding was needed to end Title 42 in a “safe, orderly and humane way,” Jean-Pierre said.

If “Republicans in Congress are serious about securing the border,” she said, “then they should assist in making sure the men and women at the DHS have what they need to get this done.”

The additional funding would be used to increase ground and air transportation to help move migrants to less crowded areas, establish new Customs and Border Protection holding facilities and speed up processing times for people filing asylum claims. 

It would allow the federal government to hire more than 300 additional border agents, purchase additional technology and equipment, and increase support for towns near the border, like El Paso.