The Supreme Court this week blocked the White House from lifting Title 42 — the public health order put in place by the Trump administration in the early months of the COVID-19 pandemic on public health grounds. Title 42 lets Customs and Border Protection turn migrants away at the border to try to stop the spread of the virus.
Since it was implemented in March 2020, more than 2 million people, asylum-seekers, have been removed from the U.S. or turned away at the border. That figure includes people who have made multiple attempts to get into the U.S.
A federal judge ruled in November that Title 42 was unlawful, and set it to end on Dec. 21. But the Supreme Court paused that ruling on Dec. 19. Nine days later, the Supreme Court said the policy would remain in place while the legal challenge plays out.
In a dissenting opinion, conservative Justice Neil Gorsuch wrote that the “current border crisis is not a COVID crisis. 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.”
Justices are set to hear arguments in the case when their next term begins in February.
The Centers for Disease Control and Prevention in the spring that it intended to lift Title 42 in May “after considering current public health conditions and an increased availability of tools to fight COVID-19.”
Attorneys general from 19 Republican-led states petitioned to keep the rule in place, saying their states would be hit hard by an anticipated surge of migrants into the country. Arizona Attorney General Mark Brnovich, one of those who led the effort to keep Title 42 in place, spoke to NPR’s A Martinez about why it should stand.
Why keep Title 42 in place to control immigration?
Brnovich argued that in rescinding Title 42, President Joe Biden didn’t follow the law, which requires notice to and comments from those affected by his action.
“We as the states tried to intervene to protect our interest, and the Biden administration disagreed, saying the states didn’t have an interest,” he said. “I think the events of the last two years, whether it’s on a cost in health care, whether it’s the costs of incarceration or whether it’s the costs in lost lives — Every state in the United States now is a border state, and we all have an interest in making sure we have a secure border.”
Brnovich acknowledged that Title 42 isn’t “the end all-be all.”
“It’s not a permanent policy. It was never meant to be. But it is one of the few tools we have left in our toolbox that is stopping even more people from illegally reentering.”
Why did the Supreme Court decide to leave the policy in place?
The question before the court was whether the states had legal standing to argue for keeping the policy in place, and a majority agreed that they did.
I think the answer to that from a constitutional legal perspective is, yes, the states are impacted, Brnovich said. “And yes, the states should be allowed to intervene when the federal government won’t do its job.”
Is Title 42 still necessary for public health reasons?
He argues that by imposing COVID restrictions on other countries like China, the current administration undercuts its argument for lifting Title 42.
“From a legal perspective, the president and his administration is taking actions saying there’s a pandemic, and they’re literally taking actions to try to mitigate and control it,” Brnovich said. “If they’re going to try to exclude people from China from coming, having negative COVID tests then, and they want to argue that there’s still things that the government has to be doing because of this pandemic — then, my goodness, one of the things they should absolutely be doing is keeping Title 42 in place.”
Why not go back to Title 8, the federal immigration law that allows for prosecuting illegal border crossings?
“The Biden administration is not prosecuting people for illegal entry and reentry into our country. They are literally letting people make asylum claims and then they’re releasing them into our country. And sometimes, you know, they’re being told to report to probation officers years down the road,” he said. “You can look at the data on how long it takes, but that’s more of an indictment on our federal immigration system, which everyone agrees is broken.”
Why do you blame Biden for the border crisis?
The attorney general says Biden’s policies have encouraged people to try to cross the border.
“From day one, when Joe Biden was being sworn in, he started to decriminalize and incentivize people breaking into the or coming into the country illegally,” Brnovich said. “There was the interim guidance where the Biden administration was refusing to deport people with deportation orders, where we had to file a lawsuit. He stopped building the wall, where taxpayers are having to pay for a wall that wasn’t being built. You know, the ‘Remain in Mexico’ policy — the list goes on and on.”
Brnovich said that people from all over the world are crossing the southern border, and that “they will tell you that, ‘Hey, we’ve heard that Joe Biden’s not prosecuted anybody and people can stay here.’ And the reality is, that is exactly what’s happening.”
How would you fix the system?
Brnovich says rolling back restrictions shouldn’t be the top priority.
“The very first thing you have to do is aggressively enforce existing law. You have to gain control of the southern border,” he said. “And then once you do that, you can start having a discussion.”
He pointed to then-President Obama’s surge to deal with a migrant influx at the southern border in 2014. “They aggressively sent judges and federal prosecutors to our southern border to aggressively prosecute entry and reentry cases. And even during the Obama administration, they were able to stem the flow of immigration.”
He said that other countries have systems that work and could serve as models for U.S. policy.
“I understand why people want to come to this country, but I also believe there has to be a process,” Brnovich said. “There are countries like Canada and Australia that have immigration systems that are based on merits and points. … If they need, you know, more nurses or more gardeners in, you know, Australia, they will let people come in and become citizens and take those jobs. And so I think there’s other systems out there that we can look to that don’t create chaos.”