Biden lawyers urge Supreme Court to end Trump’s border policy

Attorneys for President Biden on Tuesday asked the Supreme Court to deny an urgent request from Republican-led states and end Trump-era COVID-19 policies that turned away asylum-seekers at the border.

But Attorney Gen. Elizabeth B. Prelogar also asked the Supreme Court to keep the so-called Title 42 border restrictions in place for another week to give the administration time to prepare for more intensive screening of migrants at the border.

The border restrictions were scheduled to expire on Wednesday, but Chief Justice John G. Roberts Jr. indefinitely paused that deadline on Monday.

The Title 42 policy, based on a long-standing public health emergency law, was imposed by the Trump administration during the COVID-19 pandemic to prevent infected people from entering the country.

A federal judge said the policy could no longer be justified as the health crisis eased. When he ordered the restrictions lifted by Wednesday, Republican states sued to keep them in place.

In a Tuesday filing with the Supreme Court, Biden’s attorneys agreed that the time had come to end the COVID-related rules.

“The Government recognizes that the end of Title 42 orders is likely to result in disruption and a temporary increase in illegal border crossings,” Prelogar said. “The government is in no way trying to downplay the seriousness of this problem. But the solution to this immigration problem cannot be to prolong indefinitely a public health measure that everyone now acknowledges has outlived its public health justification.”

Trump administration policy empowered agents to deport migrants without giving them an asylum hearing.

In her place, the Biden administration says it will conduct rapid hearings to determine which migrants can seek asylum based on a credible fear of persecution.

Judges have yet to decide whether to allow the appeals of Arizona and 18 other GOP-run states, and perhaps hear arguments about whether Trump policies can be ended.

So far, court conservatives have been skeptical of the Biden administration’s reliance on the pandemic to enforce its rules.

In a 6-3 decision, the court overturned a moratorium on evictions that Biden had maintained as a pandemic measure. In the same vote, the Conservative majority blocked a Labor Department rule that would have required large employers to enforce a vaccination mandate.

Earlier this month, the court put on hold Biden’s plan to scrap millions in student loans, which was based on his emergency agency to deal with the pandemic. Judges will hear arguments on the legality of the proposed loan forgiveness in February.

But the tables are turned in the immigration dispute. It is the conservative states that argue that the pandemic-related health measure known as Title 42 must remain in effect. The democratic government disagrees.

That year, two federal judges issued conflicting judgments on Title 42, and both decisions were based on the Administrative Procedures Act, not the federal Immigration Act.

In May, Judge Robert Summerhays, a Trump appointee in Louisiana, ruled on more than 20 Republican-run states and said the Biden administration should not overturn the use of Title 42. To do so, he said, would be “arbitrary and capricious” and would violate the APA because the administration failed to seek formal comments beforehand.

In November, Judge Emmet G. Sullivan, a Clinton appointee in Washington, ruled for the ACLU and immigrant rights advocates, saying it was “arbitrary and capricious” that the administration was still on long after the COVID emergency Title 42 left is faded. Now the harms to asylum seekers outweigh any health benefits, he said.

Sullivan agreed to let his decision take effect in five weeks, making the 12/21 the deadline.

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