States’ Challenge to Biden’s Withdrawal of Title 42 Border Expulsions Policy Not Dead, Supreme Court Action Suggests

Matthew Vadum
By Matthew Vadum
February 21, 2023Border Security
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States’ Challenge to Biden’s Withdrawal of Title 42 Border Expulsions Policy Not Dead, Supreme Court Action Suggests
The United States Supreme Court during a warm autumn day in Washington on Oct. 22, 2020. (Samuel Corum/Getty Images)

The Supreme Court issued a new order on Feb. 21 suggesting it is moving forward with a case about the Title 42 policy that allows rapid expulsion of illegal aliens crossing the U.S.-Mexico border after it abruptly canceled a hearing in the case days ago.

The Biden administration had asked the High Court to drop the case, arguing it was moot because President Joe Biden’s Office of Management and Budget said in a press release on Jan. 30 that it would extend the soon-to-expire pandemic-era emergencies to May 11 “and then end both emergencies on that date.”

The current national and public health emergencies were declared by the Trump administration in March 2020.

Also in 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued an emergency order under Title 42 of the U.S. Code regarding individuals recently in a country where a communicable disease is present.

This allowed the government to promptly return to Mexico, without a formal hearing, anyone illegally crossing the border on the theory that their presence might pose public health risks.

More than 2 million individuals have been expelled under the policy.

The mostly Republican attorneys general of 19 states—including the border states of Arizona and Texas—argue that they are entitled to intervene in the case to challenge the Nov. 15, 2022, ruling of federal Judge Emmet Sullivan, who determined the Title 42 policy was unlawful because the federal government had failed to show that suspending normal immigration laws was justified.

On Feb. 16, the court pulled the oral argument in the case, Arizona v. Mayorkas (court file 22-592), scheduled for March 1, from the calendar without providing an explanation or an indication of how the justices voted on the matter.

In that order, the Supreme Court did not dismiss the pending case or indicate that its order of Dec. 27, 2022, that prevented the withdrawal of the Title 42 policy was rescinded.

The Supreme Court often communicates about its orders in a terse manner, not explaining its decisions or providing context that might be helpful in understanding why it did something.

Attempting to read the tea leaves, many commentators reacted to the unexpected, dramatic cancelation by reasoning that the decision to nix the oral argument meant the case itself was either dead or all but dead.

But the new order of the court on Feb. 21 suggests the case is very much alive and that the court is planning at some point to hold an oral argument in the high-profile matter.

In the order, the court grants a Feb. 14 motion by U.S. Solicitor General Elizabeth Prelogar for “divided argument” and to enlarge the overall time allotted for oral argument, which in most cases is usually 60 minutes.

Divided argument allows the court to take time away from one party and give it to another party or parties.

In her motion, Prelogar suggested the hearing be of 70 minutes duration, with 35 minutes devoted to the petitioner states challenging the Biden administration’s proposal to end Title 42, 20 minutes devoted to the federal government, and 15 minutes for private respondents participating in the case.

The states and the private respondents consented to the motion, the document said.

The order itself does not spell out the new time allotments.

Christopher Hajec, director of litigation for the Immigration Reform Law Institute (IRLI), which filed a friend-of-the-court brief supporting the states that favor extending the Title 42 policy, suggested the court plans to move ahead with the hearing at some point.

“They are continuing on at least until May 11,” Hajec told The Epoch Times by email.

Humanitarian and open-borders groups say the Title 42 policy prevents those fleeing persecution and violence in their home countries from obtaining legal due process when they arrive in the United States; however, the states say withdrawing the policy would flood already overburdened border facilities with even more illegal would-be migrants.

The states previously told the High Court that failing to enforce the policy “will cause a crisis of unprecedented proportions at the border” and that “daily illegal crossings may more than double.”

The Epoch Times has reached out to the U.S. Department of Justice for comment.

From The Epoch Times

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