Supreme Court removes oral arguments over Title 42 immigration policy from its calendar

By Ariane de Vogue and Devan Cole, CNN

The Supreme Court said on Thursday that it has removed a case concerning a controversial Trump-era immigration policy known as Title 42 from its calendar.

The court gave no explanation for its action, but the Biden administration has already announced that the Covid-19 public health emergency that serves as a legal underpinning of the program is set to expire on May 11. The program remains in effect.

Earlier this month, the administration told the court that it believes the expiration will moot the ongoing case.

The Trump administration invoked Title 42 at the onset of the coronavirus pandemic. The public health authority allows border officials to turn away migrants encountered at the US-Mexico border in the name of Covid-19 prevention.

Oral arguments in the case were set to occur on March 1.

The justices’ move represents the latest turn in the legal odyssey around the restriction, which has been the subject of ongoing litigation amid efforts to end it.

US Solicitor General Elizabeth Prelogar informed the justices earlier this month that “absent other relevant developments” she thought the Supreme Court case would be moot after the health emergency expires on May 11, which would terminate Title 42.

Some critics of Title 42 are worried, however, that the May 11 deadline itself could come under separate legal challenges, leaving Title 42 on the books for weeks, if not months, longer.

Last year, Republican-led states, which had already filed suit in a separate court, requested to intervene in a case, arguing that the program should be left in place. The Supreme Court agreed to leave the program in effect and said it would hear arguments on March 1 on whether the GOP-led states can intervene.

The Biden administration first announced it would suspend the public health order last April, with the US Centers for Disease Control and Prevention saying at the time that Title 42 was “no longer necessary.”

But that effort was blocked by a federal judge in Louisiana, until another federal judge in the District of Columbia ordered it to end.

Arizona Attorney General Mark Brnovich — who took the lead for the states — has said that “getting rid of Title 42 will recklessly and needlessly endanger more Americans and migrants by exacerbating the catastrophe that is occurring at our southern border,” adding: “Unlawful crossings are estimated to surge from 7,000 per day to as many as 18,000.”

The Biden administration has continued to use Title 42 to send migrants who unlawfully crossed back over the border.

The authority — which was heavily criticized by public health experts and immigrant advocates — has largely barred asylum at the US-Mexico border, an unprecedented departure from traditional protocol. Its end could restore access to asylum for arriving migrants, allowing them to enter the US and make their case in immigration court.

This story has been updated with additional details.

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