Explained: US Supreme Court upholds Trump-era border policy 'Title 42'. What does it mean?

The United States Supreme Court, on Tuesday, upheld the controversial Trump-era immigration policy called Title 42. This comes after the apex court halted its expiration which was due on December 21 in a 5-4 ruling.

The policy was implemented during former US President Donald Trump’s time in office, at the beginning of the COVID-19 pandemic to limit the movement and spread of disease across the US-Mexico border.

What happened in the recent ruling?

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As mentioned earlier, the SCOTUS upheld the policy Title 42, as it is called, by Chief Justice John Roberts. This comes after the incumbent US President Joe Biden’s administration had appealed to end the pandemic-era restriction. The case will be argued in February 2023, meanwhile, the restriction will remain in place at least until a decision is made potentiallyby the end of June.

ALSO READ |Title 42: US Supreme Court keeps controversial Trump-era border restriction policy in place

The ruling also followed a stay order on Title 42 which was imposed last week and also comes amid the recent surge of migrants at the borderwith thousands of people entering the US. Furthermore, the apex court’s decision also said that they will hear oral arguments on the issue of whether states have the right to intervene in the upcoming legal battle for Title 42.

Arguing against the Covid-era restriction, Justices Neil Gorsuch and Ketanji Brown Jackson, wrote that even if states have the right to intervene and the restriction in question is lawfully adopted, the emergency based on which “those orders were premised has long since lapsed.”

They added, “the current border crisis is not a Covid crisis,” and that the “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.”

Additionally, Justices Elena Kagan and Sonia Sotomayor also voted to deny the stay butdid not sign a dissent, unlike the aforementioned justices. Meanwhile, White House press secretary, Karine Jean-Pierre, said on Tuesday, that the Biden administration will comply with the order and prepare for the February review.

ALSO WATCH |U.S. Supreme Court rules to keep Title 42 in place

She added, “At the same time, we are advancing our preparations to manage the border in a secure, orderly, and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration.” The press secretary also noted that Title 42 was a health measure and not an immigration enforcement measure, therefore, it should not be extended indefinitely.

What is Title 42?

Title 42 dates back to 1944 and is a public health law which grants emergency powers to US health officials to prevent the spread of communicable diseases and keep it outside the country. In this case, it included the Border Patrol turning away thousands of migrantsat the southern US borders from entering, on the grounds that they could bring COVID-19 into the country.

In March 2020, the Trump administration implemented the law which had only been invoked one other time in American history, in 1929, during a meningitis outbreak when ships from China and the Philippines were barred from entering US ports.

The Trump administration'sdecision at the time was justified by saying that the order is designed to prevent the spread of COVID-19 through immigration detention facilities, where all migrants are typically briefly held beforeeither being released or deported.

ALSO WATCH |Migrants at US-Mexico border brave bitter cold; Title 42 restrictions to stay or go?

Notably, the former US president and his administration who have been in favour of tightening restrictions along the border also claimed that for the first time they could use a public-health emergency order to turn away migrants.

“Every week, our border agents encounter thousands of unscreened, unvetted and unauthorised entries from dozens of countries. But now it’s with the national emergencies and all of the other things that we’ve declared, we can actually do something about it,” the now-former President had said at the time, reported the Wall Street Journal.

This also included those who are seeking asylum which under the country’s immigration law should typically invoke a process under which the migrant must be allowed to stay in the country long enough to plead their case. So far, the policy has been used 2.5 million times to expel migrants atthe border, although thisalso accounts for people who repeatedly tried to enter the country.

Furthermore, while the Biden administration continued the policy many from his Democratic party had pushed the president to end these measures, while others, particularly in the border states said that the restriction should remain in place and that the US is not prepared to deal with the sudden influx of asylum-seekers.

What has happened in the courts, so far?

Last year, a group representing immigrants were denied the right to seek asylum and they in turn filed a lawsuit to end the use of Title 42. Thus began the long court battle which could decide the fate of thousands at the country’s southern borders.

ALSO READ |US Supreme Court stays 'Title 42' which blocks Mexican migrants from entering the country

In April, the US Centers for Disease Control (CDC) indicated that they would lift Title 42 as vaccines and treatments were mitigating the pandemic situation in the country. However, the next month, a federal judge in Louisiana ruled in the favour of 19 Republican-led states which sought the continuation of the restriction till 2025 and kept the order in place.

Meanwhile, the Biden administration also attempted to end the policy, earlier this year, in May, by arguing that the policy is no longer justified on the grounds that it was implemented. However, before they could do so, a Louisiana federal judge blocked them and said they had not used the correct administrative procedure which required public notice and time to gather public comment to end the policy in place.

However, in November, Washington Judge Emmet Sullivan’s ruling rendered the decision moot, saying that the policy’s implementation must end on December 21. Meanwhile, a group of Republican-led states intervened and argued that the cancellation of Title 42 would cause “an enormous disaster” at the border and will cost the state law enforcement, education, and health care.

Therefore, the case reached the SCOTUS who last week put a stay on the order and temporarily continued the implementation of the restriction to thoroughly study each side’s argument. The decision, on Tuesday, extended this temporary stay indefinitely with the next hearing in February.

Which migrants are getting affected by Title 42?

Notably, not all asylum seekers are getting affected by the policy as the Biden administration does not enforce Title 42 with children travelling alone but only single adults and families. Furthermore, the enforcement also differs by nationality, affecting migrants from Guatemala, Honduras, Mexico, and El Salvador.

ALSO WATCH |US judge blocks Joe Biden's plan to end 'Title 42'

Additionally, Mexico allows them to be returned from the US and last month also began accepting Venezuelans expelled from the American border due to Title 42 which led to a massive drop in the number of people from Venezuela applying for asylum. Meanwhile, countries like Cuba make it difficult for the US to get their country’s migrants back, causing their numbers to increase at the border.

What would happen if Title 42 was no longer in effect?

If the restriction was to be lifted, border experts believe that there might be an influx of migrants and those who had been refused entry due to Title 42,will make another attempt to enterthe US. However, the asylum-seekers will be interviewed by the border authorities and determine who has a credible threat of being persecuted in their home countries, but the process could take years till then they can stay in the country until a final decision is made.

What does the Biden administration plan to do about the sudden influx of migrants at the US borders?

Earlier this year, the border city of El Paso, Texas announced a seven-day emergency, which the city’s Mayor Oscar Leeser, a Democrat, said would help local authorities to deal with the influx of migrants sleeping on the streets. He also warned that the city is at capacity with more than 2,500 migrants arriving from Mexico each day.

ALSO WATCH |Political 'stunt': 85 migrants dropped outside VP Kamala Harris' house amid -18 degree temperature

On Tuesday, in the aforementioned press briefing the White House press secretary said that the government is working to manage the border in a secure, orderly and humane manner when Title 42 is lifted.

“Today’s orders give Republicans in Congress plenty of time to move past and join their Democratic colleagues in solving the challenge at our border by passing comprehensive reform measures and delivering the additional funds for border security that President Biden has requested,” Jean-Pierre added.

This is in reference to the increase in funding the Biden administration has asked for the Department of Homeland Security which outlined a plan, in a statement, earlier this month, should Title 42 be lifted to tackle the issue in a safe and humane method. According to the government, it will help the department during the transition phase.

(With inputs from agencies)

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