Biden Admin Asks SCOTUS To Deny GOP States’ Request To Keep Trump-Era Border Policy In Place

 The Biden administration’s Department of Justice (DOJ) asked the Supreme Court Tuesday to deny a request from Republican states to keep Title 42, a policy invoked by the Trump administration to expel certain illegal immigrants to mitigate the spread of COVID-19, in place.

More than one dozen Republican attorneys general asked the Supreme Court Monday to intervene in a federal judge’s recent decision to end a major Trump-era border policy Dec. 21. The DOJ asked the Supreme Court Tuesday to consider keeping Title 42 in place until Dec. 27 or earlier if it’s able to quickly intervene, according to the court filing. 

“The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings. The government in no way seeks to minimize the seriousness of that problem. 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 DOJ wrote to the high court.

If applicants are dissatisfied with the immigration system Congress has prescribed in Title 8, their remedy is to ask Congress to change the law — not to ask this Court to compel the government to continue relying on an extraordinary and now obsolete public health measure as de facto immigration policy,” it added.

WASHINGTON, DC – DECEMBER 07: Demonstrators protest during a “No Lawless Lawmakers” rally at the Supreme Court during oral arguments in Moore v. Harper on December 07, 2022 in Washington, DC. (Photo by Tasos Katopodis/Getty Images for Common Cause)

A federal judge previously denied Republican states’ attempt to keep the policy intact. The Republican states are renewing their previous calls to keep the order in place, arguing that scrapping the policy will add to an already overwhelming illegal immigration surge at the southern border, where U.S. Customs and Border  Protection (CBP) encountered a record of more than 2.3 million migrants in fiscal year 2022.

“Such a stay is particularly appropriate given the enormous harms that would otherwise be inflicted upon the States and further because there is not the slightest indication that DHS could ever meaningfully remedy those harms after they have occurred,” the Republican states wrote to Supreme Court Chief Justice John Roberts Monday.

The American Civil Liberties Union (ACLU) also attempted to stop the Republican states from keeping Title 42, in a Tuesday filing to the Supreme Court separate from the DOJ’s.

“Their concerns arise not from COVID-19, but from immigration itself — and that is a matter to take up with Congress, not this Court. The States’ silence about COVID-19 speaks volumes, given that the entire purpose of the Title 42 policy is supposed to be as a COVID-19 control measure. Indeed, the States themselves recognize that conditions have changed dramatically since the Title 42 policy was first instituted in March 2020,” the ACLU argued.