Supreme Court Chief Justice John Roberts on Monday temporarily blocked the lifting of Title 42, the pandemic-era health policy that has been used to remove more than 2.5 million unlawful migrants since the beginning of the COVID-19 pandemic.
The policy was set to expire on Wednesday, December 21, but a coalition of 19 Republican-led states had asked the high court for an emergency stay to keep Title 42 in place after a request was rejected by an appellate court last Friday.
In the one-page order, Chief Justice Roberts granted the stay pending further order of the court and asked the government to respond to the states by 5 p.m. Tuesday.
It is unclear how long Roberts’ stay will remain in place, but it will likely be months until the court considers the states’ request.
Roberts’ decision is procedural and does not indicate how the court will ultimately rule on the Title 42 request, Aaron Reichlin-Melnick, policy director at the American Immigration Council, told Axios.
The Department of Homeland Security (DHS) said the public health order “will remain in effect at this time, and individuals who attempt to enter the United States unlawfully will continue to be expelled to Mexico.”
“While this stage of the litigation proceeds, we will continue our preparations to manage the border in a safe, orderly, and humane way when the Title 42 public health order lifts,” DHS said.
“We urge Congress to use this time to provide the funds we have requested for border security and management and advance the comprehensive immigration measures President Biden proposed on his first day in office.”
Title 42 was activated under then-President Donald Trump in March 2020. It has been used to expel hundreds of thousands of unlawful migrants coming from countries where COVID-19 has spread.
As the policy was set to expire, thousands packed into shelters on Mexico’s border with the U.S.
El Paso was preparing for a surge of as many as 5,000 new unlawful migrants a day after Title 42’s expiration.
In anticipation, El Paso Mayor Oscar Leeser on Saturday declared a state of emergency to access additional local and state resources for building shelters and other aid.
Groups including the ACLU, Center for Gender & Refugee Studies, and Texas Civil Rights Project had previously sued to stop Title 42, arguing it unfairly denies unlawful migrants the chance to claim asylum — deemed a human right under the United Nations’ Universal Declaration of Human Rights.
Public health officials have also questioned the use of the COVID-19 pandemic to maintain Title 42. Citing COVID vaccines and other available treatments, the Centers for Disease Control and Prevention (CDC) argued in April that Title 42 had become unnecessary.
While the burden on border authorities will mount if Title 42 is lifted, some believe the policy is counterintuitive.
Without Title 42, expulsions of unlawful migrants would be carried out under the federal statute Title 8, which entails a lengthier expulsion process but carries more stringent penalties.
If a person re-enters the country after being removed under Title 8, they will face punishment that could include up to two years in prison.
Title 42 does not carry any penalties for repeat crossers, essentially providing “a means to get multiple opportunities to enter the United States,” Ariel Ruiz Soto, a policy analyst at the Migration Policy Institute, told NBC News.
“That is counterproductive because it, in some ways, incentivizes migrants to try multiple times,” Ruiz Soto explained, adding, “The more times that migrants try, the more likely that they’re successful.”
Under Title 42, the percentage of people apprehended more than once by Border Patrol increased from 7% in 2019 to 27% in 2022.
Border states have charged that the federal government has no plan to deal with an increase in unlawful migrants. They counter that the predicted surge in border-crossings they would see if Title 42 ends would cause “irreparable harm,” burdening government services like health care and law enforcement.
Gov. Greg Abbott noted that Texas bears a heavy burden as people cross the border in droves.
“Texas won’t wait on Biden to do his duty to secure the border,” he wrote on Twitter. “The Lone Star State continues to protect our communities, our state, & our nation from Biden’s open border policies.”
Abbott argued that keeping Title 42 in place “helps prevent illegal immigration.”
Texas Attorney General Ken Paxton, who was a party to the motion filed Monday, vowed to keep fighting for the policy to remain in place.
“I will do everything I can in court to ensure our border is secure,” he said.
