U.S. Supreme Court

Chief justice temporarily continues Title 42 policy that expelled asylum-seekers based on COVID-19 dangers

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AP Title 42 migrants

Migrants stand near the U.S.-Mexico border in Ciudad Juarez, Mexico, on Dec. 19. COVID-19 pandemic-era immigration restrictions in the United States known as Title 42 are set to expire Dec. 21. Photo by Christian Chavez/The Associated Press.

Chief Justice John Roberts on Monday temporarily kept in place a policy that quickly turned back asylum-seekers on the ground that they could contribute to the spread of COVID-19.

Roberts issued an administrative stay of a judge’s order blocking the policy. Roberts’ stay allows the full Supreme Court to consider an emergency application by 19 Republican-led states, report the New York Times, Law360 and the Washington Post. The states object to a judge’s order ending the expulsion policy by Dec. 21.

The policy expelling asylum-seekers, enacted during the Trump administration, is based on Title 42, which is part of the Public Health Service Act of 1944. The law allows the Centers for Disease Control and Prevention to ban immigrants from entering the United States if needed to help prevent the spread of disease.

The 19 states had asked the Supreme Court to keep the policy in place after a decision by U.S. District Judge Emmet Sullivan of the District of Columbia. In November, Sullivan ruled that the Title 42 policy was arbitrary and capricious and blocked its use. On Friday, the U.S. Court of Appeals for the District of Columbia Circuit did not disturb Sullivan’s order, saying the 19 states waited too long to seek to intervene in the litigation.

A different federal judge, Judge Robert R. Summerhays of the Western District of Louisiana, had ordered that the Title 42 policy be kept in place in May, citing concerns that the Biden administration didn’t allow for notice and comment before seeking to end it.

The states had argued that Sullivan’s ruling effectively nullifies the ruling by Summerhays, according to coverage of the states’ application by SCOTUSblog.

The states had argued that ending the expulsion policy would “cause a crisis of unprecedented proportions at the border.”

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