Supreme Court orders Biden to pause lifting Title 42 border restriction

Covid-era restriction has been used by two US administrations to block asylum claims

The Supreme Court has ordered the Biden administration to halt its plans to cease the use of Title 42, a controversial guideline used by US border authorities to turn away many migrants over the past two years.

Chief Justice John Roberts issued the stay on Monday afternoon as the Supreme Court takes up a case from GOP attorneys general seeking to keep the policy in place. Though most US Covid restrictions and guidelines have gone away, the Title 42 policy’s effect on stemming the tide of migrants seeking asylum at the southern border has led to conservative states to demand that it be kept in place.

Those same conservative states warn that the end of Title 42 restrictions will mean a surge of migrants at the southern border seeking to cross illegally.

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"Getting rid of Title 42 will recklessly and needlessly endanger more Americans and migrants by exacerbating the catastrophe that is occurring at our southern border,” claimed Arizona’s attorney general.

The Biden administration has until the end of Tuesday to file a response. The administration originally planned to lift the restrictions on Wednesday.

Potentially aiding the GOP’s case is a previous ruling blocking the Biden administration from winding down the restriction, but a separate case challenging the validity of the restriction overall resulted in another court deciding that the government must be blocked from enforcing Title 42. Conservatives say that outcome was engineered by the Biden administration, which has appealed the end of Title 42 as a whole but not the individual order seeking the end of its enforcement by 21 December.

The convoluted battle over the rule may explain somewhat why GOP attacks centred on the issue of immigration failed to land effectively during the 2022 midterm elections; in the final weeks of 2022, the Biden administration had the opportunity to see the first major movement in decades on the issue of immigration in Washington as moderate senators in both parties met to discuss passing major reforms, however, those negotiations fell short of reaching the 60 votes needed to pass such legislation.

The possibility of passing serious legislation addressing the US-Mexico border remains alive but far dimmer going forward into the new Congress, where Republicans will have a razor-thin majority in the House and Democrats will have expanded their similarly tenuous lead in the Senate by one seat.