Republican-Led States Ask Supreme Court to Allow Border Expulsions

WASHINGTON — Nineteen states led by Republicans asked the Supreme Court on Monday to maintain a Trump-era public health emergency measure that allows the government to expel migrants seeking asylum who cross the southern border unlawfully.

Lawyers for the states asked the justices to issue an emergency stay of a federal judge’s order blocking the program, known as Title 42, saying it is needed to prevent a surge of border crossings.

“The failure to grant a stay will cause a crisis of unprecedented proportions at the border,” they wrote, adding that “daily illegal crossings may more than double.”

Judge Emmet G. Sullivan, of the Federal District Court in Washington, ruled last month that the measure, imposed by the Centers for Disease Control and Prevention, did little to advance public health and much to endanger immigrants.

He set a Wednesday deadline for ending the program unless a higher court issued a stay.

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia rejected the states’ request for a stay on Friday, saying they had waited too long to try to intervene in the case, which had been brought by migrant families seeking to end expulsions under the health measure.

Lawyers for the immigrants say the health measure does not justify thwarting the ability of people fleeing violence to apply for asylum. The Republican-led states responded that without the measures, border states would face an overwhelming influx of migrants, adding that the case also has broader implications.

“This case presents an opportunity for this court to address the district court’s misguided attempt to constrain C.D.C.’s authority to use Title 42 to protect public health in future pandemics,” they wrote. “The consequences are not limited to the present dispute: The district court’s ruling will hamstring emergency action by C.D.C. to prevent aliens with communicable diseases from entering the United States in the future.”

The measure has been used in more than 2.3 million expulsions since the Trump administration invoked it in early 2020, saying it was needed to address the coronavirus pandemic. Critics said the policy was actually meant to cut immigration.

In their emergency application, the states said they faced irreparable harm if the justices failed to act. “In particular,” the states’ lawyers wrote, “the greatly increased number of migrants resulting from this termination will necessarily increase the states’ law enforcement, education and health care costs.” They added that “there has already been a surge of migrants approaching the border in anticipation of the Dec. 21 stay expiration, underscoring the states’ harms.”

Lawyers for the states asked the Supreme Court to take immediate action to maintain the status quo while the justices consider the matter. “Given that the termination of Title 42 is currently set to take effect at 12:01 a.m. on Wednesday, Dec. 21,” they wrote, “the states respectfully request an immediate administrative stay pending resolution of this stay request.”