Southern border in limbo as Title 42 hangs in balance after temporary Supreme Court stay

Officials, communities and migrants along the besieged southern border are in limbo as the Supreme Court considers the fate of the Title 42 public health order — after temporarily blocking its expiration in response to a last-minute appeal on Monday.

The public health order — which has been used to expel hundreds of thousands of migrants under both the Trump and Biden administrations since March 2020 — was due to expire on Wednesday due to the order of a federal court.

The looming end to the order had sparked widespread fears from Republicans, Democrats and officials that there would be an overwhelming surge at the border even larger than the already historic numbers that border officials are facing. Fox News has reported how migrants have been camped out in Mexico awaiting the end to the order, and the Department of Homeland Security has projected between 9,000 and 15,000 migrant encounters a day once the order ends — while also promising that it has a plan in place to deal with the numbers.


However, Supreme Court Chief Justice John Roberts, in response to an emergency appeal from Republican-led states, put a temporary hold on the unwinding of the order late Monday. He indicated that the court could move quickly on a more permanent decision, giving the Justice Department until Tuesday at 5 p.m. ET to file a reply brief.

The 19 Republican states will then be able to file a final rebuttal, potentially also by early in the evening. At that point, the court will have what it needs to issue an order. It is expected that Roberts will ask his colleagues on the bench to weigh in and issue an order on behalf of all of them.

The court could potentially allow Title 42 to expire as scheduled. It could also allow the policy to stay in place indefinitely while broader issues are litigated in the lower courts, or the Court itself could choose to decide the case on its merits and schedule oral arguments for into 2023 – which could see Title 42 kept in place until then.

The Department of Homeland Security (DHS) said in a statement that the public health order ‘will remain in effect at this time and individuals who attempt to enter the United States unlawfully will continue to be expelled to Mexico.’

‘While this stage of the litigation proceeds, we will continue our preparations to manage the border in a safe, orderly, and humane way when the Title 42 public health order lifts,’ a spokesperson said. ‘We urge Congress to use this time to provide the funds we have requested for border security and management and advance the comprehensive immigration measures President Biden proposed on his first day in office.’

The ruling marks the latest dramatic twist in the fate of the order, which was also due to expire in May at the behest of the Biden administration — but that too was blocked by a federal judge. The order remaining in place throughout the summer, and the administration even expanded its use to include Venezuelan nationals in October.

The order, put in place due to the COVID-19 pandemic, was always likely to end at some point, but there has been fierce debate over what sort of plan should replace it — and whether the Biden administration’s six-point plan is sufficient.

That plan, outlined repeatedly by DHS and Secretary Alejandro Mayorkas, involves an increase of resources and funding to the border, along with a greater use of alternative methods of removal — including expedited removal and punishments for illegal crossings. The administration says it is also ramping up cooperation with Western Hemisphere countries and non-governmental organizations. It has also made a nearly $4 billion request to Congress for additional funding. 


The White House on Monday claimed that saying the border will be open when the order ends is ‘misinformation,’ and has urged Republicans to grant the funding request. The administration has repeatedly claimed that the border is both ‘secure’ and ‘closed.’

‘I want to be very clear here. The fact is that the removal of Title 42 does not mean the border is open,’ White House press secretary Karine Jean-Pierre said. ‘Anyone who suggests otherwise is simply doing the work of these smugglers who, again, are spreading misinformation which is very dangerous.’ 

Mayorkas, meanwhile, has stressed that preparation are underway.

‘We’re mindful of the fact that Title 42 is going to end early next week,’ Mayorkas told the El Paso Times last week during a visit to the border. ‘We’re also mindful of the fact that we have to coordinate with our partners, not just the nonprofit organizations with which we work very closely, not just cities along the border like El Paso, but also our international partners. So, we’re moving as quickly as we can.’


However, numbers have already been high at the border even before the end of the order. FY 2023, which began in October, is already on pace to see greater numbers than FY 2022’s more than 2.3 million migrant encounters. Communities like El Paso have been overwhelmed as that sector has seen a 255% increase compared to last year. The mayor of the city has declared a state of emergency. 

One Texas rancher, John Sewell, told ‘America’s Newsroom’ said on Wednesday that ‘we’re all bracing for the worst’ when the order ends.

Meanwhile, in an interview with Fox Digital, National Border Patrol Council President Brandon Judd described how low morale was among Border Patrol agents.

‘We just feel, we all feel just completely defeated, like there’s just no point in doing our jobs. We still do it, don’t get me wrong. We still go do our job, but we just feel like there’s just absolutely no point. And so it’s just really bad.’

He warned that once the order drops there will be a ‘huge explosion [in migration] because there are all kinds of people that are camped out right now just waiting for it to end.

Fox News’ William Mears and Bradford Betz contributed to this report. 

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