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Trump-era policy that’s expelled more than 2 million migrants to remain in place

 Migrants line up on the northern banks of the Rio Grande. A new large group has formed just east of the downtown bridge after Texas National Guard blocked a similar entry point.
Julian Aguilar
The Texas Newsroom
Migrants line up on the northern banks of the Rio Grande.

The U.S. Supreme Court on Tuesday ruled to keep the controversial border expulsion policy known as Title 42 in place until a lawsuit between several GOP-led states, including Texas, and the Biden administration is resolved.

The Trump administration implemented Title 42 in 2020 as an effort to curb the spread of COVID-19, it said at the time. The policy allows for the rapid expulsion of migrants back into Mexico before they apply for asylum and has been used more than 2 million times since.

The decision comes as thousands of migrants have continued to seek entry into the United States, either by surrendering to Border Patrol or by evading detection. Local governments on the border say they have struggled with the influx of newcomers to their cities.

A timeline on a final resolution is unclear, but the latest action, the high court’s second in about a week, will certainly frustrate migrants who have been waiting in Mexico as well as their supporters among immigrant rights groups across the country that have argued for years the policy is being abused.

But the decision could also buy some time for the Biden administration, after it has been criticized by some Democratic allies of the president who say the White House doesn’t have a plan to deal with what would be tens of thousands of more migrants entering the country should the policy end.

In November, U.S. District Court Judge Emmet Sullivan said Title 42 was “arbitrary and capricious” and struck it down.

Though he said that the Centers for Disease Control and Prevention — which initiated the order — had a right to try and contain the spread of the virus, Sullivan said the CDC should have considered a policy less severe than expelling migrants back to Mexico, NPR reported.

The intervention by the Republican-led states kept the policy in place, and in its ruling Tuesday, the U.S. Supreme Court said the parties should now argue before the court whether the intervention should have been allowed.

“The parties are directed to brief and argue the following question: Whether the State applicants may intervene to challenge the District Court’s summary judgment order,” the decision states.

The order stated the arguments will occur in February.

The high court voted 5-4 to keep the policy. In his dissent, Justice Neil Gorsuch acknowledged the current situation on the border is a “crisis,” but argued it wasn’t directly tied to the pandemic.

“And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency,” he wrote. “We are a court of law, not policymakers of last resort.”

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson also dissented.

Texas Gov. Greg Abbott and Attorney General immediately cheered the decision, marking it as a win for the rule of law.

“Today, SCOTUS handed Texas and the USA a huge victory by allowing Title 42 to remain in place after Biden illegally tried to terminate this critical policy,” Paxton tweeted. “I will continue to fight at every turn and do everything in my power to help secure our border and keep Texans safe.”

Copyright 2022 KERA. To see more, visit KERA.

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