A day after the U.S. Supreme Court stopped a lower court's order to end the Title 42 pandemic era policy, the Biden administration responded by arguing that Republican state officials could not block the decision.
U.S. Solicitor General Elizabeth Prelogar, speaking for the administration, said on Tuesday that the states do not themselves have “claim to be seeking to vindicate any interest in public health or slowing the spread of COVID-19.” She added that the pandemic-era policy was used as a “make-shift immigration-control measure.”
In its Tuesday response, the administration also requested that a short-term stay remain in effect until end of day on December 27, thereby blocking the end of Title 42 for another week.
The federal response explained that that “would allow the government to again prepare for a full return to operations.” If the dispute goes before the Supreme Court, the policy will actually remain in place in the interim.
The U.S. Supreme Court halted the expiration of a controversial public health policy yesterday that allowed officials to expedite migrants at the border.
Under Title 42, most immigrants are removed quickly, including those seeking asylum.
Even so, El Paso still prepared for the arrival of hundreds of migrants on Tuesday, despite the fact that the Supreme Court stayed that order that was scheduled to expire on Wednesday.
El Paso authorities scrambled to find more shelter space for the hundreds of migrants who continue to arrive daily. They announced plans to convert a large city-owned building into a shelter. In recent days, about 2,500 people a day have turned themselves in to Border Patrol. Many have been released pending immigration hearings.
Last month, a federal judge voided the policy known as Title 42. Judge Emmet Sulivan had ordered Title 42’s cancellation because it violated the Administrative Procedure Act and called it arbitrary and capricious.
However, on Monday afternoon, Chief Justice John Roberts granted a request to temporarily keep it in effect.
The order came after a coalition of 19 states, including Texas, asked the Supreme Court on Monday to halt the lifting of Title 42.
Monday's court ruling stated the policy would remain pending further orders from Roberts or the court but did not give a timeframe.
Legal experts contested Title 42’s legality because it deprives migrants of their right to request asylum upon arrival at the border.
In response to the anticipated lifting of Title 42, the Texas National Guard activated and deployed 400 Texas National Guardsmen to the El Paso border area on Monday as part of Operation Lone Star, Gov. Greg Abbott's enhanced border security effort. About 5,000 Guard members are already deployed along the border as of November under the operation.
The Department of Homeland Security said in a statement that it will continue preparations to manage the border in a safe, orderly, and humane way whenever the policy lifts.
Abbott demanded in a statement on Tuesday that the Biden administration deploy federal assets to address the border crisis, particularly in El Paso, as a dangerous weather event moves into the state. It is bracing for a polar vortex that will cause temperatures to plummet on Thursday night. Lows will be in the 20s Thursday through Saturday.
In his letter, the governor outlined the “acute humanitarian crisis caused by federal inaction to secure America’s southern border.” He said that “migrants are at risk of freezing to death on city streets” and asserted that the need to address the crisis is not the job of border states. He said the U.S. Constitution indicates that the job belongs to the president to “defend the borders” of the country and manage immigration.
Jaime Puente with Every Texan, an organization that pushes for equitable public policy, said the humanitarian need at the border is immense, and local nonprofits are overwhelmed.
"People are stepping up individually," he said. "But I think one of the things that that we wholeheartedly believe is that the state, federal government, government in general, has a responsibility to provide enough to provide more of those resources and do more of that work."
He also criticized the use of state funds for Operation Lone Star. He said the end of Title 42 would deepen the humanitarian need at the border and that the money would be put to better use there.
"Instead of state government providing resources to local residents and support to local residents who are taking care of the immigrants who are in their community," he said, "we're continuing to spend it on a program that has had absolutely no return on investment."
Funding for Operation Lone Star is set to run out at the end of the month, but Puente said he expected the state to replenish it.
