The Biden administration wants the Supreme Court to strike down Title 42, but not yet


In its response, the Justice Department said it opposed the offer by the GOP-led states to uphold the Title 42 limits while litigation on the issue continued. But at the same time, the federal government asked for more time to prepare for the transition. The request comes as critics warn that the Biden administration was not prepared to handle an anticipated surge of immigrants in the border between the United States and Mexico.

“The government recognizes that the end of the Title 42 orders will likely cause disruptions and a temporary increase in illegal border crossings. The government in no way seeks to minimize the seriousness of that problem,” Attorney General Elizabeth Prelogar wrote in the Tuesday afternoon filing. “But the solution to that immigration problem cannot be to extend indefinitely a public health measure that everyone now recognizes has outlived its public health justification.”

The Supreme Court is expected to act quickly on the matter. A ruling that could have a major impact at the border is likely to be issued in a matter of days.

Thousands of migrants already appeared to have gathered along the southern border, knowing that border officials won’t be able to get them out as quickly as they could under Title 42 restrictions first imposed by the Trump administration in March 2020 when the coronavirus began its rampage. global spread. .

The legal uncertainty this week about the fate of the border directive it is yet another chapter in the difficult journey of the Biden administration to end Trump-era immigration policies. Even as administration officials project to be prepared, the situation on the southern border has turned into a political disaster for the White House, and the request for additional time is another sign that the administration is struggling to implement a backup plan. to replace Title 42.

In Tuesday’s Supreme Court filing, the Justice Department conceded that the administration was hoping for a temporary increase in border crossings, while asking that judges keep Title 42 in effect at least through the end of the day on December 27. And if the Supreme Court doesn’t reach a decision by December 23 or later, the administration asks for two business days to implement new policies.

Administration officials are still finalizing plans to deal with the impending surge, people familiar with the planning told POLITICO last week. DHS is considering reviving a «no-transit» model, increasing training for asylum officers to help them understand who qualifies under the International Convention Against Torture, and considering an expansion of humanitarian parole programs for Haitians. , Nicaraguans and Cubans.

“While the end of Title 42 orders is likely to lead to a temporary increase in border crossings, the government is prepared to address that serious problem under its Title 8 authorities, including by adopting new policies to respond to the temporary interruption that will occur. every time Title 42 orders end,” Prelogar said, alluding to the traditional immigration authorities the administration was expected to return to to handle and limit asylum claims.

“If applicants are dissatisfied with the immigration system that Congress has prescribed in Title 8, their remedy is to ask Congress to change the law, not to ask this Court to force the government to continue to rely on a health measure. extraordinary public policy and now outdated as de facto immigration policy,” the attorney general wrote.

The Biden administration’s stance on the issue is murky. When US District Court Judge Emmet Sullivan struck down the Title 42 restrictions last month and ordered the policy to end by December 21, the Justice Department appealed. The government argued that it did not need to implement the policy because the Centers for Disease Control and Prevention, the agency formally issuing the directive, had already determined that it was not necessary with much lower covid cases than when Title 42 was reinstated. for the first time in March 2020. But federal authorities said in their appeal that they wanted to preserve the ability to use Title 42 health-related powers in the future, if the situation warrants it.

So even though the Justice Department appealed Sullivan’s ruling, it found itself in a position Tuesday to ask the high court to put the judge’s order on hold for now and deny the states’ attempt to prevent the order from going into effect. validity.

Prelogar explains this apparent contradiction by arguing that states led by the Republican Party are not entitled to emergency aid because they lack legal standing at this stage of the game. The litigation that led to Sullivan’s order was ongoing for nearly two years before the states launched their failed attempt to intervene.

But the states maintain that the Biden administration is trying to capitalize on Sullivan’s order to advance the administration’s broader goals of ending the Title 42 policy.

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