Biden Officials Tell Supreme Court That Title 42 Case Will Soon Be Moot

WASHINGTON — The Biden administration urged the Supreme Court on Tuesday to dismiss a challenge to ending the pandemic-era immigration measure known as Title 42, saying that the government’s announcement that the health emergency would expire on May 11 would make the case moot.

The court in December blocked a trial judge’s ruling that would have lifted the measure, which has allowed even migrants who might otherwise qualify for asylum to be swiftly expelled at the southern border. The justices are scheduled to hear arguments in the case on March 1.

“The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render this case moot,” the administration’s brief said.

The expulsion policy, introduced by the Trump administration in March 2020, has been used to expel migrants — including many asylum seekers — about 2.5 million times. Humanitarian organizations have said the policy prevents migrants fleeing violence and persecution from obtaining a safe harbor required by U.S. and international law, but border officials fear its demise could fuel a surge in illegal crossings along the already overwhelmed border.

The Supreme Court’s order in December was a provisional victory for the 19 mostly Republican-led states that had sought to keep Title 42 in place, saying that states often must bear the brunt of the effects from a surge in border crossings. “The failure to grant a stay will cause a crisis of unprecedented proportions at the border,” lawyers for the states wrote in an emergency application, adding that “daily illegal crossings may more than double.”

In agreeing to hear the case, the Supreme Court said it would address only the question of whether the states that had sought the stay could pursue their challenge to the measure.

The administration’s brief said “the mooting of the underlying case would also moot petitioners’ attempt to intervene.”

The court was closely divided on the decision of whether to grant a stay. Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Ketanji Brown Jackson dissented.

Justice Gorsuch, in a dissent joined by Justice Jackson, wrote that the court had effectively taken an incorrect position, at least temporarily, on the larger issue in the case: whether the coronavirus pandemic justified the immigration policy. The Centers for Disease Control and Prevention had initially adopted the policy to prevent cross-border transmission of the disease, a policy the agency has since said is no longer medically necessary.

“The current border crisis is not a Covid crisis,” Justice Gorsuch wrote. “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. We are a court of law, not policymakers of last resort.”

Judge Emmet G. Sullivan of Federal District Court in Washington ruled in November that the measure did little to advance public health and much to endanger immigrants.

He set a Dec. 21 deadline for ending the program. A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected the states’ request for a stay, 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.