The Supreme Court is keeping pandemic-era immigration restrictions indefinitely in place, shattering the hopes of immigration policy advocates who were expecting their end this week.
In a Tuesday ruling, the Supreme Court extended a temporary stay that Chief Justice John Roberts issued last week. According to the court’s order, the case will be heard in February and the stay will be maintained until the judges rule the case.
The limits, often referred to as Title 42 in reference to a 1944 public health law, were introduced under then-President Donald Trump at the start of the pandemic. As part of the restrictions, officials have expelled asylum seekers within the United States 2.5 million times and turned away most people who applied for asylum at the border to prevent the spread of COVID-19.
Immigration advocates sued for the policy’s termination, saying it violated American and international obligations to people fleeing to the US to avoid persecution. They have also argued that the policy is outdated as coronavirus treatments improve.
The Supreme Court’s decision comes as thousands of migrants have gathered on the Mexico side of the border, filling up shelters and worrying lawyers scrambling to figure out how to take care of them.
“We are deeply disappointed by all of the desperate asylum seekers who will continue to suffer under Title 42, but we will continue to fight to eventually end the policy,” said Lee Gelernt, an attorney with the American Civil Liberties Union, which had argued for the End use of track 42.
Tuesday’s ruling specifically said the Supreme Court will consider whether states have the right to intervene in the Title 42 litigation. Both the federal government and pro-immigration advocates have argued that states have waited too long to intervene, and even if they hadn’t waited long enough, they don’t have the credibility to intervene.
In a dissent, Justices Neil Gorsuch and Ketanji Brown Jackson said that even if the court were to find states have the right to intervene and Title 42 was legitimately adopted, “…the emergency on which these orders were based , has long passed .”
The judges said the “current border crisis is not a COVID crisis”.
“And courts should not be preoccupied with upholding administrative orders intended only for an emergency because elected officials failed to address another emergency.” We are a court, not a policy maker of last resort,” the judges wrote.
White House press secretary Karine Jean-Pierre said Tuesday that the Biden administration “will of course comply with the order and prepare for court review.”
“At the same time, we are moving ahead with our preparations to manage the border in a safe, orderly and humane manner when Title 42 is eventually lifted, and we will continue to expand legal immigration routes,” added Jean-Pierre. “Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.”
In November, a federal judge sided with the attorneys and set a Dec. 21 deadline to terminate the policy. Conservative-leaning states appealed to the Supreme Court, warning that an increase in migration would disrupt public services and cause an “unprecedented calamity” that they said the federal government would not be able to deal with.
Roberts, who deals with emergency matters coming from federal courts in the nation’s capital, has issued a stay to give the court time to consider both sides’ arguments more thoroughly.
The federal government asked the Supreme Court to dismiss the states’ efforts, but also acknowledged that an abrupt end to restrictions would likely lead to “disruption and a temporary increase in illegal border crossings.”
The precise question before the court is a complicated, largely procedural question as to whether states should be allowed to intervene in litigation. A similar group of states won a lower court order in another jurisdiction preventing the end of restrictions after the Centers for Disease Control and Prevention announced in April that they would end application of the directive.
As of the November decision of the judge in the attorneys’ lawsuit, the states had not attempted to intervene in the case. But they say the government has essentially abandoned its defense of Title 42 policy and they should be able to intervene. The administration has appealed the verdict, although it has made no attempt to uphold Title 42 while the litigation is ongoing.
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