U.S. Supreme Court cancels arguments over Title 42, the pandemic-era policy to quickly turn away migrants

People apprehended by state troopers after crossing the border were brought to the International Bridge in Eagle Pass and handed over to Border Patrol custody on May 28, 2022. (Credit: Sergio Flores for The Texas Tribune)

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The U.S. Supreme Court on Thursday canceled arguments in a case over the emergency health order the federal government has used for nearly three years to quickly turn away migrants, including those seeking asylum, at the southern border.

The justices didn’t give an explanation for why they pulled from their schedule the March 1 hearing on the emergency health order known as Title 42, which has been used to expel migrants 2.6 million times since March 2020.

The high court’s move comes as a lawyer for the Biden administration filed a brief in the case last week saying the case would be moot because the federal government planned to end on May 11 the COVID-19 national and public health order, which had allowed the government to invoke Title 42.

The national health order, which was imposed by the Trump administration in January 2020 and renewed every 90 days since then, helped Americans receive COVID-19 tests and vaccines against the coronavirus at the government’s expense. The end of the COVID-19 national health order means that Title 42 will also automatically come to a halt.

“Unless the Supreme Court issues a further order clarifying the scope of the stay, or lift it, this means that Title 42 will continue in effect … until at least May 11,” said Aaron Reichlin-Melnick, policy director at American Immigration Council, a Washington, D.C., group that advocates for immigrants.

The Trump administration invoked the use of Title 42 as the COVID-19 pandemic began, saying it was necessary to immediately expel migrants in order to help stop the virus’s spread in immigrant detention centers. Dr. Anthony Fauci, the nation’s top infectious disease expert, has since said that immigrants are not driving up the number of COVID-19 cases.

Depending on a person’s nationality, immigration officials expel migrants to Mexico or their home countries. People who aren’t expelled from entering the country under Title 42 are processed under immigration laws in which a migrant can request to open an asylum case or be deported. Whenever the federal government stops its use of Title 42, immigration officials will process all migrants under the usual immigration laws.

Title 42 has been the subject of various lawsuits.

The American Civil Liberties Union and two Texas-based immigrant rights groups sued to end Title 42 in January 2021, arguing that the policy violated U.S. asylum laws and that the Trump administration used the pandemic as a pretext to invoke Title 42 and use it as an immigration tool.

Judge Emmet Sullivan of the U.S. District Court in Washington, D.C., agreed, ruling last November that the Centers for Disease Control and Prevention’s use of Title 42 is “arbitrary and capricious” and a violation of the law because it was not implemented properly. Sullivan ordered the Biden administration to stop the use of Title 42.

The following month, the Supreme Court told the Biden administration to keep it in place until the justices could hear arguments on the policy.

But simultaneously, a separate lawsuit seeking to force the Biden administration to keep the policy in place was making its way through the courts.

In May, U.S. District Judge Robert R. Summerhays in Louisiana blocked the Biden administration from ending Title 42. The administration appealed, and that case remains pending in the 5th U.S. Circuit Court of Appeals.