WASHINGTON — The U.S. Supreme Court ordered pandemic-era border restrictions to remain in effect, granting a request by Republican state officials who said lifting the rules would have produced an unmanageable surge of migrants seeking to enter the country.
Voting 5-4, the justices blocked a lower court decision that was designed to invalidate the so-called Title 42 rule as of Wednesday. The high court order, which extends a temporary pause Chief Justice John Roberts imposed, keeps the border policy in place while litigation goes forward. Justice Neil Gorsuch joined the court’s three liberals in dissent.
The justices also said they will hear arguments on one aspect of the case, a bid by the states to intervene in defense of the policy. The court indicated arguments will be heard in late February or early March.
The order came after the Senate voted last week against extending the restrictions as part of a $1.7 trillion omnibus spending package.
The restrictions have let the Trump and Biden administrations quickly expel people more than 2 million times since early 2020 amid an unprecedented tide of migrants and worries about the spread of COVID-19. Ending the policy would have meant a fresh set of challenges for President Joe Biden, forcing him to manage a new influx at the southern border.
Although Title 42 is a public health provision, many border hawks have come to see it as a necessary tool. In seeking Supreme Court intervention, 19 Republican attorneys general said a federal district judge’s order invalidating the policy would create a “crisis of unprecedented proportions” if the decision took effect.
The Biden administration told the justices it was prepared to use other immigration tools to address what would likely be a “temporary” increase in illegal crossings.
“The solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification,” argued U.S. Solicitor General Elizabeth Prelogar, the Biden administration’s top courtroom lawyer.
The administration is separately trying to end the policy through a rule issued in April by the Centers for Disease Control and Prevention. A federal trial judge has blocked that effort, and the case is now before a different appeals court.
Immigrant families are challenging the policy, telling the Supreme Court the restrictions are subjecting people who can’t enter the U.S. to assault, torture, rape and murder.
“The record in this case documents the truly extraordinary horrors being visited on noncitizens every day by Title 42 expulsions,” lawyers at the American Civil Liberties Union Foundation argued for the group.
U.S. District Judge Emmet Sullivan struck down the restrictions in November, saying the CDC didn’t adequately explain a departure from past policy. A federal appeals court in Washington said the states waited too long to intervene so they could request a stay of Sullivan’s ruling.
The Biden administration took a mixed stance toward the policy in court. The Justice Department appealed the district court’s order but didn’t seek to keep the restrictions in place in the meantime.
The GOP-led states called the administration’s approach a “calculated and strategic surrender.” The states said lifting the restrictions would require them to spend more money on law enforcement and social services.
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(With assistance from Jordan Fabian and Ellen M. Gilmer.)
