Title 42 & the Supreme Court
The lift of Title 42 is but one part of the long-awaited “immigration reform” the Biden administration promised both pre- and post-election. Title 42 has been the subject of federal government, state government, and federal court debate. In June 2022, the U.S. Supreme Court ruled that the Biden administration could end Title 42, but we may see Title 42 once more based on recent friction between states’ pursuits of their own immigration-related policies and the federal executive branch.. What is Title 42? The code, which was established in 1944, prevents entry into the U.S. by persons who have recently traveled to a country with known risk of communicable disease. Since the start of COVID-19 pandemic, the Trump administration invoked Title 42 as a pillar of its immigration policy In March 2020, the Trump administration invoked a little-known provision of U.S. health law, U.S. Code Title 42, Section 265, to begin border removals for migrants seeking asylum protections at the U.S.-Mexico border. Under the Trump administration, the U.S. Centers for Disease Control (CDC) backed the administration’s decision, reasoning that COVID-19’s presence justified Title 42. The end result was the turning away of would-be asylum seekers and immigrants at the U.S.-Mexico border on the basis of disease prevention. According to the American Immigration Council, more than 1.8 million immigrants have been sent back to Mexico or their home countries under this provision during the pandemic. Why is it still in effect? In April 2022, the CDC announced that the pandemic had eased enough to lift Title 42. The increased availability of rapid tests and widespread use of the vaccine warranted lightened precautions on the immigration front. As a response, the Biden administration planned to lift Title 42 on May 23, effectively ending the rapid expulsion of undocumented migrants at the southern border. According to the Washington Office on Latin America, “Official border crossings (ports of entry) would re-open to migrants who fear for their lives” and asylum seekers would have the opportunity to make their claims for protection. However, two states - Missouri and Texas - filed a federal court lawsuit against the Biden administration, arguing that Title 42 was necessary. Although the district court ruled with the states and barred the Biden administration from ending Title 42, the U.S. Supreme Court eventually had its say. On June 30, 2022 the Supreme Court ruled in a 5-4 ruling against Texas and Missouri, holding that the Biden administration has the right to end Title 42. The Court sent the case back to the Texas district court to determine if terminating the policy violated any administrative laws. What’s next? With the future of Title 42 still in question, immigration advocates continue to push for its end. Some argue that it will “restore order,” while it remains unclear whether the Biden administration will lift the provision or wait for the lower court to rule. The Department of Homeland Security welcomed the Supreme Court ruling that the Secretary of State “has the discretionary authority to terminate the program,” according to a statement. “We will continue our efforts to terminate the program as soon as legally permissible,” the statement said.
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