US Supreme Court intervenes to keep Title 42 anti-migrant policy in place

Chief Justice of the US Supreme Court John Roberts ordered on Monday an extension of the emergency public health restrictions put in place during the Trump administration for mass expulsion of immigrants seeking asylum in the US at the southern border.

Migrants from Colombia, front, wait to be processed by Border Patrol agents near the end of a border wall Tuesday, Aug. 23, 2022, near Yuma, Arizona. [AP Photo/Gregory Bull]

In a signed one-page order known as an administrative stay, Judge Roberts temporarily overruled the November 22, 2022 decision of the US District Court for the District of Columbia that would have forced an end to the Trump-era Title 42 anti-immigrant policy as of 12:01 a.m. Wednesday morning.

While Roberts’ order was procedural and officially presented as necessary for the Supreme Court to have time to consider the matter, immigration experts have been estimating that the arrival of migrants at the US-Mexico border could surge from 2,500 to over 18,000 per day once the rule is lifted.

The Supreme Court Chief Justice’s order was prompted by an application for an emergency stay filed by 19 Republican-led states which said that maintaining Title 42 was necessary to prevent the increase in the numbers crossing the US southern border. The application stated that “failure to grant the stay will cause a crisis of unprecedented proportions” because the number of “daily illegal crossings may more than double.”

The provisions of Title 42, a public health law passed in 1944, were invoked by then-President Trump in March 2020 as legal justification for escalating his anti-immigrant policies on the pretext that asylum seekers could be infected with COVID-19.

These measures, of course, were implemented while the Trump administration was doing everything possible to block public health measures from being taken within the US to stop the spread of the highly contagious and deadly virus that has now killed more than 1.1 million Americans.

In issuing the emergency stay, Chief Justice Roberts gave both sides until 5:00 p.m. Tuesday to present arguments for or against the continuation of Title 42. For its part, the Biden administration argued on Tuesday evening against Title 42, which it has been doing since taking office, while at the same utilizing it to deport large numbers of immigrants either back to their country of origin or back across the border into Mexico.

Meanwhile, US Solicitor General Elizabeth Prelogar, arguing on behalf of the White House, essentially agreed with the Republicans and said that “the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings,” adding that the solution to the problem “cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification.”

In other words, the Democrats in the White House agree with the Republicans on stopping the entry of immigrants into the country, while acknowledging that the pretense of taking action against asylum seekers to stop the spread of COVID-19 has grown quite thin, given President Biden’s declaration that the pandemic is over, even as the virus kills more than 400 Americans every day.

Even so, the Biden administration argued in its filing on Tuesday that if the court denies the states’ request before Friday, it should leave the short-term stay of Title 42 in effect until at least December 27. The White House brief said, “That brief continuation would allow the government to again prepare for a full return to operations.” In other words, the Biden administration is claiming it is against Title 42 while at the same arguing legally in favor of keeping it in place.

The Republicans’ application to keep Title 42 in place is rife with the same hypocrisy. While governors across the country have blocked any measures to mitigate the ongoing coronavirus pandemic, they are now claiming immigrants must not be allowed into the US because they would be bringing in COVID-19.

For example, Republican Governor of Texas Gregg Abbott appeared on ABC News “This Week” on Sunday morning and said, “Whether it’s COVID or some other issue, when you have people coming in from across the globe, without knowing at all what their health status is, that almost by definition is a public health risk.” 

This was said by Abbott while he prohibited vaccine mandates for Texas government employees in August and rejected CDC guidelines for vaccination of school children in November. When pressed by the ABC News co-anchor Martha Raddatz to explain his position on Title 42, Abbott insisted, “There’s every reason to keep that in place.”

While the corporate media and both political parties of the American ruling establishment are focused on the growing number of migrants showing up in El Paso and other border cities seeking asylum in the US, little or nothing is being said about the cause of the humanitarian crisis that is unfolding.

A large percentage of the migrants attempting to enter the US are coming from Guatemala, Honduras and El Salvador. There are also immigrant workers and their families coming from Venezuela and Cuba.

The unbearable conditions of life in these countries are behind the decision of the migrants to risk everything and attempt the dangerous trip to enter the US. These conditions are the product of more than a century of US imperialist policy in Latin America.

The domination of these countries by the US corporate and financial elite, backed by military repression and violence against the population, is among the worst legacies of imperialist oppression anywhere in the world.