World

US Supreme Court orders border restrictions kept in effect

Decision means thousands waiting on Mexican side of border remain stranded

An aerial view of an international bridge as immigrants line up next to the US-Mexico border fence to seek asylum in El Paso, Texas. Immigrants remain in limbo at the border following the US Supreme Court decision on Tuesday. Photograph: John Moore/Getty Images

Greg Stohr
Tue Dec 27 2022 - 23:33

The US Supreme Court ordered pandemic-era border restrictions to remain in effect, granting a request by Republican state officials who said lifting the rules would have produced an unmanageable surge of migrants.

Voting 5-4, the justices blocked a lower court decision that was set to invalidate the so-called Title 42 rule. The justices also said they will hear arguments in late February or early March on the states’ bid to intervene in defence of the policy.

The Supreme Court order means thousands of people waiting on the Mexican side of the border will remain stranded there for the time being. It’s a courtroom setback for president Joe Biden’s administration, which had urged the justices to let the policy expire.

The Title 42 rule lets the government quickly expel people, some of whom would be eligible for asylum, using the health emergency created by the spread of Covid-19.

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Justice Neil Gorsuch joined the court’s three liberals in dissent. Gorsuch faulted the majority for using a public heath provision to address broader immigration issues.

“The current border crisis is not a Covid crisis, Gorsuch wrote in an opinion joined by Justice Ketanji Brown Jackson. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

The majority didn’t explain its reasoning, and two other dissenters, Justices Elena Kagan and Sonia Sotomayor, simply said they would have rejected the states’ request.

The order extends a temporary pause Chief Justice John Roberts imposed, keeping the border policy in place while the Supreme Court considers the intervention issue. The court said it won’t be directly considering whether the Title 42 rule is lawful.

The court also indicated the Biden administration could continue its effort to repeal the policy, a push that is at the centre of a separate legal fight. A federal trial judge has blocked that effort, and the case is now before a different appeals court.

“Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely, White House press secretary Karine Jean-Pierre said in a statement. “We need Congress to pass comprehensive immigration reform measures like the ones president Biden proposed on his first day in office.”

The Supreme Court order came after the Senate voted last week against extending the restrictions as part of a $1.7 trillion omnibus spending package.

The restrictions have let the Trump and Biden administrations quickly expel people more than 2 million times since early 2020 amid an unprecedented tide of migrants and worries about the spread of Covid-19. Though Biden’s administration is seeking to end the policy, doing so would mean a fresh set of challenges, forcing him to manage a new influx at the southern border.

Although Title 42 is a public-health provision, many border hawks have come to see it as a necessary tool. In seeking Supreme Court intervention, 19 Republican attorneys general said a federal district judge’s order invalidating the policy would create a “crisis of unprecedented proportions if the decision took effect”.

Texas attorney general Ken Paxton called the order a “huge victory” on Twitter.

The Biden administration told the justices it was prepared to use other immigration tools to address what would likely be a “temporary increase in illegal crossings”.

“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, argued US solicitor general Elizabeth Prelogar, the Biden administration’s top courtroom lawyer.

Immigrant families are challenging the policy, telling the Supreme Court the restrictions are subjecting people who can’t enter the US to assault, torture, rape and murder.

“We continue to challenge this horrific policy that has caused so much harm to asylum seekers and cannot plausibly be justified any longer as a public health measure, American Civil Liberties Union attorney Lee Gelerent said in a statement. The ACLU represents the families. -Bloomberg

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