Biden says he will enforce Title 42 indefinitely following Supreme Court order

December 28, 2022

President Biden said he will continue enforcing the Title 42 border policy indefinitely after the Supreme Court forced his hands in a Tuesday ruling.

While technically a defeat for Biden, the court's decision almost appeared to come as a relief to the president, who said, "we have to enforce it."

Supreme Court forces Biden's hand

Title 42 has been used to expel more than 2 million immigrants without a chance to claim asylum since it was introduced as a public health order in 2020. Biden's on-again, off-again enforcement of Title 42 has angered his liberal base, who regard the policy as a cruel relic of the Trump presidency.

While pushing to end Title 42, Biden has often appeared to welcome opportunities to delay its expiration, as if, deep down, Biden knows the border is not "secure" like he says it is.

Biden struck a tone of ambivalences after the court moved to keep Title 42 in place indefinitely, saying he won't second-guess the decision even if Title 42's end is "overdue."

“The court is not going to decide until June, apparently, and in the meantime, we have to enforce it. But I think it’s overdue," he said.

Biden's ambivalence

In the past, Biden has taken a much less deferential tone towards the Supreme Court when it has ruled against his interests.

When the court struck down Roe v. Wade in June, he called the conservative justices "out of control" and "extreme."

Title 42 had been set to end December 21 before the Supreme Court granted an emergency request from Republican states for an injunction. Biden asked the court to end Title 42 but on a delayed schedule.

Commenting on the court's move Tuesday, Biden press secretary Karine Jean-Pierre said the administration will make "preparations to manage the border in a secure, orderly and humane way when Title 42 eventually lifts."

Crisis averted?

Republicans have called for indefinite enforcement, saying the border will be totally overrun if Title 42 expires.

Border towns like El Paso, Texas have already been overwhelmed by an influx of immigrants expecting to be let into the country once Title 42 ends.

But critics of Title 42 have said it is no longer justifiable as a public health order, an argument adopted by conservative justice Neil Gorsuch in a dissent with the court's liberal wing Tuesday.

"The current border crisis is not a COVID crisis,” Gorsuch wrote. "And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort."

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