DOJ asks Supreme Court to toss case seeking to keep Trump-era Title 42 immigration policy in place

U.S. President Joe Biden speaks with border patrol officers as he walks along the border fence during his visit to the U.S.-Mexico border to assess border enforcement operations, in El Paso, Texas, U.S., January 8, 2023.
Kevin Lamarque | Reuters

The Department of Justice asked the Supreme Court to toss out a case challenging the Biden administration’s decision to end Title 42, a Trump-era immigration policy affecting asylum seekers.

The DOJ, in a filing late Tuesday, told the Supreme Court that the administration’s move to end the Covid-19 public emergency on May 11 “would render this case moot.”

That is because the Centers for Disease Control and Prevention order regarding Title 42 says the policy should end when the secretary of Health and Human Services’s declaration of a public health emergency from the pandemic expires.

The case, set to be argued on March 1 at the court, challenges the Biden administration’s plan to end Title 42, which allowed the United States to quickly deport migrants seeking asylum.

Title 42 had been implemented in March 2020 due to the Covid pandemic. Adopted under former President Donald Trump, it allowed the U.S. to boot more than 2 million migrants, most of them at the Mexican border.

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In a case brought by asylum seekers trying to overturn Title 42, a federal judge ruled in November that the policy violated federal law and was “arbitrary and capricious.”

A group of Republican state attorneys general have asked to intervene in the case to defend Title 42.

The Supreme Court in December ordered the policy to remain in place as it considered whether the states have the legal standing to sue over Title 42.

In its filing Tuesday, lawyers for the DOJ wrote, that question will no longer be “a live case or controversy” because of the automatic expiration of Title 42 that would occur once the public health emergency ends.

“The government has also recently announced its intent to adopt new Title 8 policies to address the situation at the border once the Title 42 orders end,” the filing said.

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