US Supreme Court orders Title 42 to remain in effect

Court approves Republican state attorneys' appeal against judge's decision to overturn emergency order

Migrants from Venezuela line up for hot drinks and food from volunteers at a makeshift camp near the US border in Matamoros, Mexico. AP

The US Supreme Court on Tuesday left in place a pandemic order allowing officials to quickly expel migrants caught at the border with Mexico.

In a 5-4 vote, the court approved an appeal by 19 Republican state attorneys general to put on hold a judge's ruling to end the emergency order, known as Title 42, while it considered whether they could intervene to challenge the ruling.

The states had argued that lifting the policy could lead to an increase in already-record border crossings.

Chief US Supreme Court Justice John Roberts, a member of the court's 6-3 conservative majority, on December 19 issued a provisional stay maintaining Title 42 while the court considered whether to keep it in place for longer.

Before his order, the policy had been set to expire on December 21.

Conservative Justice Neil Gorsuch joined the court's three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — in dissenting from Monday's order, leaving Title 42 in effect.

Title 42 was implemented in March 2020 under Republican former president Donald Trump at the start of the Covid-19 pandemic.

US President Joe Biden, a Democrat, kept the restrictions in place for more than a year after taking office in 2021, despite promising to shift away from hard-line immigration policies adopted by Mr Trump.

“To truly fix our broken immigration system, we need Congress to pass comprehensive immigration reform measures like the ones President Biden proposed on his first day in office,” White House Press Secretary Karine Jean-Pierre said in a statement.

This order “gives Republicans in Congress plenty of time to move past political finger-pointing and join their Democratic colleagues in solving the challenge at our border by passing the comprehensive reform measures and delivering the additional funds for border security that President Biden has requested”, she added.

US Border Patrol agents apprehended a record 2.2 million migrants at the south-west border in the 2022 fiscal year, which ended on September 30.

Almost half of those arrested were quickly expelled under Title 42.

The Biden administration sought to lift Title 42 after health authorities said in April that the order was no longer needed to prevent the spread of Covid-19.

But it was blocked by a federal judge in Louisiana — a Trump appointment — in response to a Republican-led legal challenge.

Meanwhile, a group of asylum-seeking migrants represented by the American Civil Liberties Union sued the government over the policy, saying expulsion to Mexico exposed them to serious harm, such as kidnapping or assault.

In that case, US District Judge Emmet Sullivan in Washington sided with the migrants on November 15 and ruled Title 42, which has been used to expel hundreds of thousands of people since its inception, was unlawful.

Mr Sullivan, who was appointed by Democratic former president Bill Clinton, said the government failed to show the risk of migrants spreading Covid-19 was “a real problem”.

He said the government also failed to consider the harm asylum seekers would face from the Title 42 order.

The Biden administration sought time to prepare for the end of the policy, at which point migrants would be allowed to request asylum at the border. Mr Sullivan gave it until December 21.

When a federal appeals court on December 16 declined to allow the 19 Republican attorneys general to intervene and put Mr Sullivan's order on hold, they took the matter to the Supreme Court.

Reuters contributed to this report