WASHINGTON — The Supreme Court said Tuesday that a pandemic-era health measure restricting immigration at the southern border will remain in place for now, delaying the possibility of a significant increase in illegal border crossings.
In a brief, unsigned order, the justices halted the trial judge’s ruling that would have struck down the measure known as Section 42 that would have even allowed migrants who might otherwise qualify for asylum to be detained at the border. expeditious expulsion.
The court said it will hear arguments in the case at its February session and the stay will remain in effect until a ruling is issued. The justices said they would only address whether the 19 mostly Republican-led states seeking a stay could challenge the measure.
Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Kotangi Brown-Jackson dissented.
Judge Gorsuch joined Judge Jackson in saying that the legal questions about state intervention that the court agreed to address “are not particularly important in themselves and generally do not require expedited review.”
He added that by issuing the stay order while addressing the issue, the court had effectively taken the wrong position, at least temporarily, on the larger issue in the case: whether the coronavirus pandemic justified immigration policy.
“The current border crisis is not a Covid crisis,” Judge Gorsuch wrote. “Courts should not enforce an executive order designed for one emergency just because elected officials failed to address a different emergency. We are the courts, not the decision makers of last resort.”
Judges Sotomayor and Kagan did not join Judge Gorsuch’s dissent or give reasons for their vote against the stay.
The court order is a temporary victory for 19 states trying to keep Title 42, saying it is necessary to prevent a surge in border crossings. “Failure to grant deferred entry will create an unprecedented crisis at the border,” the states’ attorneys wrote in an emergency filing, adding that “the number of illegal crossings could more than double each day.”
The White House said it would comply with the Supreme Court’s order and was preparing to review it. “In the meantime, we are advancing our preparations to manage the border in a safe, orderly and humane manner when Article 42 is eventually lifted, and will continue to expand legal pathways for immigration,” White House press secretary Karin Jean- Pierre said. “Section 42 is a public health measure, not an immigration enforcement measure, and should not be extended indefinitely.”
The measure, issued by the Centers for Disease Control and Prevention, has been used to deport immigrants, including many asylum seekers, more than 2.5 million times since it went into effect in March 2020, according to federal data.
“We are deeply disappointed by desperate asylum seekers who will continue to be denied without even a chance to show they are in danger,” said Lee Gelernt, an attorney with the American Civil Liberties Union, which represents immigrants challenging the measure. “But this ruling is only temporary and we will continue this court battle.
Judge Emmet G. Sullivan of the U.S. District Court in Washington ruled last month that the measure does little to promote public health and instead poses a threat to immigrants.
He set a December. 21 Deadline to end the program. Three judges on the U.S. Court of Appeals for the District of Columbia unanimously rejected the states’ request for a stay, saying they waited too long to try to intervene in the case brought by immigrant families seeking to end deportations under health measures.
But Chief Justice John G. Roberts Jr. issued a short stay in December. 19, intended to maintain the status quo while the full court considered the matter.
Lawyers for the immigrants say health measures do not justify preventing the ability of people fleeing violence to apply for asylum.
“The states are not even trying to justify continued Title 42 deportation on public health grounds,” immigration attorneys told the judge. “Neither can they, in an era of vaccinations, testing and greater certainty about the disease. Their concerns come not from Covid-19 but from immigrants themselves — a question for Congress, not this Court.” dealt with.”
The Republican-led state responded that without the measures, border states would face an influx of immigrants, adding that the case also had broader ramifications.
“This case presents an opportunity for this court to address the District Court’s misguided attempt to limit the CDC’s power to use Section 42 to protect public health during future pandemics,” they wrote. “The consequences are not limited to the current controversy: The District Court’s ruling will prevent the CDC from taking urgent action to prevent future entry into the United States of aliens with infectious diseases.”
With Article 42, in most cases migrants were sent back to Mexico or their home countries. In practice, however, many migrants are allowed to remain in the country until they face deportation proceedings because of humanitarian exemptions or because some are from countries with which the United States has strained diplomatic relations.
Human rights advocates have long criticized the public health rules for giving border officials the power to quickly deport migrants without any due process or opportunity to seek asylum. They also argue that the policy is not good for public health.
While both the Trump and Biden administrations view the order as a matter of public health rather than immigration enforcement, it has become a key force in managing a staggering number of illegal crossings along the Southwest border. Other enforcement options take longer, especially when migrants say they fear returning to the country they fled.
Miriam Jordan Reporting from Los Angeles.