Supreme Court refuses to lift Trump-era rule at the southern border

A divided Supreme Court on Tuesday refused to overturn the Trump-era rule that turned migrants away at the border as a public health threat.

By a vote of 5 to 4, the judges allowed an appeal by Arizona and 18 other Republican-run states trying to keep Title 42 to prevent a new wave of migrants.

The court agreed to hear arguments from GOP states in February, but its order suggests the Biden administration could seek to change policy if it chooses to do so.

Last month, a federal judge in Washington overturned the Trump rule enacted in March 2020, deeming it unjustifiable now that the pandemic has subsided. His decision would have overturned Title 42 and given hope to thousands of migrants who had come to the US-Mexico border in anticipation of being able to apply for asylum.

But the court blocked the effectiveness of that decision on Tuesday.

“This stay prevents the district court’s order to vacate and set aside the Title 42 policy from taking effect; The suspension itself does not prevent the federal government from taking action with respect to this policy,” the court said in an unsigned order.

Judges Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Ketanji Brown Jackson disagreed and said they allowed the Title 42 rule to end.

The court’s order dashed the hopes of migrants who fled Venezuela, Cuba, Haiti, Nicaragua and other countries wracked by chaos and political unrest.

The Biden administration told the court it is prepared to send more agents to the border to screen migrants seeking asylum and turn back those who cannot show they are fleeing persecution.

However, GOP states predicted a “crisis of unprecedented proportions at the border” if Title 42 is lifted.

The government admits it doesn’t have enough space to hold the tens of thousands of migrants who pass the initial screening, and they are usually released pending their hearing before an immigration judge. This process usually takes many months or even several years.

To date, most court conservatives remain skeptical about the government’s use of the pandemic to push for sweeping legislative changes. For example, they struck down a rule by the Biden administration that imposed a moratorium on evictions, and they have shelved his student loan forgiveness plan, which was warranted in response to the pandemic.

But only Justice Gorsuch voted to end reliance on a public health policy at the border.

Title 42 is a provision of the 1893 Public Health Act and Efforts to Prevent the Spread of Cholera. As amended in 1944, the Act empowered the Surgeon General to . . . ban the importation of “persons or property” from countries where infectious diseases are widespread.

President Trump declared COVID-19 a national emergency, and the White House directed the Centers for Disease Control to ban the entry of “non-citizens” who arrived at the border without a visa or other proper documentation.

That rule has remained in effect even after the pandemic has subsided and President Biden has replaced Trump.

However, last month a federal judge in Washington overturned the rule, ruling that the COVID-19 pandemic could no longer justify preventing migrants from seeking asylum. Judge Emmet Sullivan agreed to a five-week delay before his ruling went into effect. He set December 21 as the deadline.

The US Circuit Court of Appeals, in a 3-0 decision, refused to overturn the deadline.

In response to the appeals by Arizona and the 18 other GOP states, Chief Justice John G. Roberts Jr. issued an “administrative stay” on Dec. 20 to put the matter on hold for a few days to allow the full court to rule .

The case was Arizona vs. Mayorkas. Supreme Court refuses to lift Trump-era rule at the southern border

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