U.S. Supreme Court Keeps Title 42 Asylum Limits in Place

The U.S. Supreme Court has ruled in a 5-4 decision that the Title 42, a policy that places strict limits on asylum that Trump invoked at the beginning of the COVID-19 pandemic, will remain in place, at least for now. The policy, which was set to expire as per a judge’s order on December 21, 2022, will remain in place until the high Court decides whether the Biden administration can terminate it. The Court is scheduled to hear arguments in the case in February.

Title 42 refers to a little-known 1944 health law that permits the United States to immediate expel asylum-seekers on the grounds of preventing the spread of disease. The policy currently is in place to prevent the continued spread of COVID-19 and U.S. officials have used it approximately 2.5 million times to remove asylum-seekers from the country.

However, with the creation of vaccines and better treatment for the disease, the U.S. Centers for Disease Control and Prevention (CDC) attempted to end Title 42 in April 22. In response, a Louisiana federal court judge agreed with a coalition of 19 Republication-led states and ordered that Title 42 remain in place. Immigration advocates then sued to end Title 42, and a federal judge in Washington ruled in November 2022 that Title 42 must end. Once the federal judge issued that ruling, the states attempted to intervene and appealed, which ultimately landed the conflicting federal court rulings in the Supreme Court for resolution.

States supporting Title 42 hailed the Supreme Court ruling as a victory, although acknowledging that it was not a permanent fix for the country’s immigration problems. Meanwhile, immigration advocates point to the steadily growing humanitarian crisis at the border, where thousands of migrants are camped without access to food, water, shelter, or bathrooms.

The Supreme Court will decide whether states have the right to intervene in the legal battle over whether Title 42 will remain in place. The federal government argues that the states waited too long to intervene and even if they hadn’t waited so long, they don’t have adequate standing to intervene in the case. The Biden administration has repeatedly characterized Title 42 as an emergency public health measure, not an immigration enforcement measure that should remain in place indefinitely and beyond the bounds of any public health emergency.

Meanwhile, the Biden administration still has considerable discretion to enforce Title 42 in any manner that it sees fit. Historically, the administration has utilized a number of exemptions to Title 42 that remain unclear, but appear to be based on threats of violence, sexual orientation, and gender identity, at least in some cases. Furthermore, the ability of the U.S. to expel migrants under Title 42 is dependent on Mexico’s willingness to accept the migrants. Currently, Mexico will accept migrants from Mexico, Guatemala, Honduras, El Salvador, and Venezuela, but not from other countries.

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