(CNN) — The Biden Government told the Supreme Court on Tuesday that judges should reject an emergency offer from a group of GOP-led states to keep the controversial Trump-era border restriction known as Title 42 in place while legal challenges are resolved.
But it also asked the court to delay ending the use of Title 42 until at least December 27, citing ongoing preparations for an influx of migrants and the upcoming holiday weekend.
The administration said states, led by Arizona, have no legal right to challenge the opinion of a federal district court that struck down the program and ordered its termination on Wednesday.
Chief Justice John Roberts temporarily froze that deadline this Monday and asked the parties involved in the lawsuit, the Department of Justice and the American Civil Liberties Union (ACLU), to comment on the matter.
Until the Supreme Court issues an order, which could occur at any time, although it does not have a deadline to do so, the authority will remain in effect.
Since March 2020, Title 42 allows US border agents to immediately turn away immigrants who cross the southern border illegally, in the interest of preventing covid-19. There have been nearly 2.5 million removals, the majority under the Biden administration, which has been bracing for an influx of arrivals if authority is lifted.
The breaking legal dispute comes as federal officials and border communities brace for an expected surge in immigrant arrivals this week as the immigration issue continues to inflame both sides of the political divide. The Department of Homeland Security implemented a plan for the end of the program that includes increasing resources at the border, going after human smugglers and collaborating with international partners.
In Tuesday’s court papers, Attorney General Elizabeth Prelogar stressed that it would be highly unusual for the court to allow states to intervene at the last minute when they have not been an official party to the dispute in question.
“The Government recognizes that the end of the Title 42 orders will likely cause disruption and a temporary increase in illegal border crossings,” Prelogar wrote.
“The Government is in no way seeking to minimize the severity of this problem. But the solution to this immigration problem cannot be to indefinitely extend a public health measure that is now recognized by all to have outgrown its public health justification,” he wrote.
Lawyers for the ACLU, which represents families subject to Title 42, also urged the judges to deny the states’ appeal.
“This case file documents the truly extraordinary horrors that are inflicted on non-citizens every day with Title 42 removals,” wrote Lee Gelernt, attorney for the families.
“The States’ argument effectively boils down to a claim that Title 42 — without hearings and without access to asylum — is a better system of immigration control from their perspective than the actual immigration statutes enacted by Congress. “Gelernt added. “But again, that’s an election for Congress.”
Preparing for the end of Trump-era authority
The White House has been preparing for the end of Title 42, expecting a flow of migrants crossing the US-Mexico border. In the Del Rio sector, for example, officials predicted that the number of migrant encounters could double from 1,700 a day to 3,500 a day when Title 42 ends, straining stretched resources in a remote area of the border.
Despite Monday’s decision, the administration is moving forward with the plans.
“We carry on as if nothing has changed,” said one of the officials, adding that political discussions are still ongoing to provide other legal avenues for the Nicaraguans, Haitians and Cubans who make up a large number of migrant encounters.
As for what happens this Wednesday if the expiration remains on hold, one official said there may be a “mini surge.”
“I think there are some who probably haven’t gotten the message and won’t until they cross,” the official said. “There are some already committed to crossing.”
Late Friday night, the US Court of Appeals for the District of Columbia Circuit ruled against the states, holding that they waited “inordinate” time before attempting to become involved in the case. That order triggered the emergency request before the high court, addressed to Roberts.
Arizona Attorney General Mark Brnovich, who led the initiative on behalf of the states, said in a statement Monday that “getting rid of Title 42 will recklessly and needlessly endanger more Americans and immigrants by exacerbating the catastrophe that is unfolding.” is taking place on our southern border,” adding: “Illegal crossings are estimated to increase from 7,000 a day to 18,000.”
Brnovich had told the judges in court papers that they should suspend the lower court’s ruling. Alternatively, he said judges should grant an “immediate” temporary injunction to maintain the status quo and also consider whether to bypass the appeals court and agree to hear arguments on the merits themselves.
“Not granting a stay here will inflict enormous irreparable damage on states, especially since states bear many of the consequences of illegal immigration,” Brnovich argued.
In the present case, six families who illegally crossed the US-Mexico border and who were subject to the Title 42 process filed the original lawsuit.
In court documents, the ACLU previously argued that Covid-19 was always a thinly veiled pretext for tightening immigration control. “There is no legal basis for using a so-called public health measure to displace immigration laws long after any public health justification has expired.”
Meanwhile, while the Biden administration opposes the states’ attempt to intervene in the ongoing dispute and has said it is willing to allow the program to end, it continues to appeal the district court opinion to preserve the government’s authority to impose public health orders in the future.