State AGs warn of ‘enormous’ harm if Title 42 policy ends in last-ditch appeal to Supreme Court

Attorneys general from 19 states warned the Supreme Court on Wednesday that allowing a Trump-era immigration policy to expire would make the ongoing crisis at the border even worse, and said even the Biden administration is acknowledging this dire situation.

The Supreme Court this week intervened in a lower court decision that called for the end of the Trump administration’s Title 42 policy, under which the pandemic was used to justify the turning away of millions of migrants at the border. That policy was set to end today, but the Supreme Court delayed that order and is hearing last-minute arguments from the Biden administration that wants to end the policy, and the 19 states that want to keep it in place.

In their late-Tuesday reply to the Biden administration, the state AGs said lifting the policy would have devastating results on border crossings that are already overwhelming the system.

‘Federal Respondents do not deny that the denial of a stay here will occasion an enormous crisis at the southern U.S. border,’ they wrote. ‘Indeed, they explicitly admit… that a stay denial ‘will likely lead to disruption and a temporary increase in unlawful border crossings…”

‘The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings. The government in no way seeks to minimize the seriousness of that problem,’ they added.

They said this harm is a basis for the Supreme Court to keep the policy in place, and also asked the court to extend the policy at least for another week, through Dec. 27, to provide more time to adjudicate the matter.

The Supreme Court is expected to make a decision on the policy imminently.

Since the Title 42 policy was enacted in March 2020 to curb the spread of COVID-19, migrants have been denied requests to seek asylum under U.S. and international law 2.5 million times.

The order 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 replacement plan is sufficient.

That plan, outlined repeatedly by Homeland Security 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 nongovernmental organizations to curb migration.

The White House this week claimed that saying the border will be open when the order ends is ‘misinformation.’ 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 Monday. ‘Anyone who suggests otherwise is simply doing the work of these smugglers who, again, are spreading misinformation, which is very dangerous.’

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.

El Paso, Texas, declared a state of emergency over the border late last week. Texas Gov. Greg Abbott has declared an invasion, and several of the state’s counties near the border had already declared states of emergency, all due to the historic numbers of illegal crossings. 

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

Fox News’ David Spunt, Adam Shaw, and Bradford Betz contributed to this report.