Supreme Court removes Title 42 from its docket

 February 17, 2023

The Supreme Court has canceled arguments on Title 42, bringing an apparent end to the winding legal saga over the immigration policy that has kept President Biden's southern border crisis in check.

The Biden administration had urged the court to drop the "moot" case, which was set to be argued on March 1, in light of the prospective end of the COVID public health emergency in May.

Title 42

More than 2.6 million immigrants have been rapidly expelled without a chance to claim asylum since President Trump introduced Title 42 at the height of the COVID pandemic in 2020.

Under pressure from the left, Biden moved to cancel Title 42 last year, saying it was no longer appropriate as a public health measure.

After some legal back-and-forth, the program was set to end in December when the Supreme Court intervened at the request of Republican states and gave it a lease on life. Biden said he would enforce it indefinitely, even as he called for it to end.

“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.

Supreme Court makes its move

The Biden administration then urged the Supreme Court this month to drop the case, citing Biden’s plans to rescind the COVID state of emergency on May 11.

The court agreed Thursday, teeing up a new stage of uncertainty at the southern border.

The border has already absorbed an unprecedented influx of illegal immigrants over the past two years, but Biden has ignored warnings that rescinding Title 42 could precipitate an unsustainable crisis.

The anticipated end of Title 42 in December led to a winter surge that brought crossings to an all-time high. Crossings then fell last month to their lowest level since February 2021.

Biden has credited the drop to recent policy changes, including an expansion of Title 42 to remove Venezuelans, Nicaraguans, Cubans, and Haitians at the border.

Biden's crisis

Biden's expedient flip-flops on Title 42 -- and his uncharacteristic deference to the conservative Supreme Court's decision to delay the end of the policy -- suggest his administration isn't ready for what’s coming next, despite assurances that the border is "secure."

Whatever progress the administration made in January could prove transient upon the prospective end of Title 42 in the spring, a time when crossings historically rise.

Ironically, Biden's plan for dealing with the aftermath involves reviving another Trump policy, the so-called "safe third country" policy that requires asylum seekers to first seek refuge in another country on their way to the United States.

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