Chief Justice Roberts briefly halts decision banning border expulsions
By Adam Liptak
Chief Justice John Roberts issued an order earlier this week temporarily maintaining a Trump-era public health emergency measure that allows the government to expel migrants seeking asylum who cross the southern border unlawfully.
The chief justice’s order, known as an administrative stay, was provisional and meant to give the Supreme Court time to consider the question of whether to maintain the program, Title 42, which a trial judge had ordered to be ended by today. The court is likely to act in the coming days.
The order was prompted by an emergency application filed Monday by 19 states led by Republicans. Lawyers for the states asked the justices to issue an emergency stay of a federal judge’s order blocking the program, saying it was needed to prevent a surge of border crossings.
“The failure to grant a stay will cause a crisis of unprecedented proportions at the border,” they wrote, adding that “daily illegal crossings may more than double.”
Judge Emmet G. Sullivan, of U.S. District Court in Washington, ruled last month that the measure, imposed by the Centers for Disease Control and Prevention, did little to advance public health and much to endanger immigrants.
He set a Wednesday deadline for ending the program unless a higher court issued a stay.
A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia rejected the states’ request for a stay on Friday, saying they had waited too long to try to intervene in the case, which had been brought by migrant families seeking to end expulsions under the health measure.
Lawyers for the immigrants say the health measure does not justify thwarting the ability of people fleeing violence to apply for asylum. The Republican-led states responded that without the measures, border states would face an overwhelming influx of migrants, adding that the case also has broader implications.
“This case presents an opportunity for this court to address the district court’s misguided attempt to constrain CDC’s authority to use Title 42 to protect public health in future pandemics,” they wrote. “The consequences are not limited to the present dispute: The district court’s ruling will hamstring emergency action by CDC to prevent aliens with communicable diseases from entering the United States in the future.”
Lee Gelernt, a lawyer with the American Civil Liberties Union, which represents migrants challenging the measure, was critical of the states’ application.
“The states are hypocritically and transparently attempting to misuse a public health law for border enforcement,” he said. “It is well past time to end the Title 42 policy given the clear lack of a continuing public health justification.”
The Department of Homeland Security said in a statement that the chief justice’s order meant that “the Title 42 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,” the statement said.
The measure has been used in more than 2.3 million expulsions since the Trump administration invoked it in early 2020, saying it was needed to address the coronavirus pandemic. Critics said the policy was actually meant to cut immigration.
In their emergency application, the states said they faced irreparable harm if the justices failed to act. “In particular,” the states’ lawyers wrote, “the greatly increased number of migrants resulting from this termination will necessarily increase the states’ law enforcement, education and health care costs.” They added that “there has already been a surge of migrants approaching the border in anticipation of the Dec. 21 stay expiration, underscoring the states’ harms.”
Lawyers for the states had asked the Supreme Court to take immediate action to maintain the status quo while the justices considered the matter. “Given that the termination of Title 42 is currently set to take effect at 12:01 a.m. on Wednesday, Dec. 21,” they wrote, “the states respectfully request an immediate administrative stay pending resolution of this stay request.”
Roberts called for a response to the states’ emergency application by 5 p.m. Tuesday, suggesting that the court may issue a swift ruling.