Now Biden Wants Title 42 to Stay – At Least Through Christmas?

The Biden administration told the Supreme Court to let Title 42 die – but not until after Christmas. The Trump-era policy was set to expire Wednesday, Dec. 21, but Chief Justice John Roberts delayed the order’s end on Monday, Dec. 19, after a last-minute appeal from a group of 19 states and gave the Justice Department until 5 p.m. Tuesday to respond.

That the government response included both an acquiescence to the Court’s action and a plea that the states’ case be rejected came as no surprise. What boggles the mind, however, is the request that Title 42 not end quite yet. The administration requested the policy remain in place until Dec. 27 if Roberts rules before Friday, or no sooner than two days after the ruling should it be after that time. If the administration still needs another week to get all its ducks in a row, what was the president’s plan before Justice Roberts intervened?

Chaos and Confusion for Christmas

Title 42, enacted under the watch of the previous president, allows the government to send both illegal crossers and asylum seekers alike either back to their home countries or, at least, back into Mexico. Title 8, the guiding rule once Title 42 is no longer in effect, allows most asylum seekers to remain in the US while their cases are processed.

That, of course, is why news of the coming change brought hordes of migrants to the border: Despite the insistence of President Joe Biden and his colleagues on the left that the border isn’t open, a free pass into the US for many is precisely what the end of Title 42 brings. Fox News reported Tuesday that would-be immigrants have been camping out along the border, waiting for the end of the order. Many of these, the administration admits, will still likely attempt to cross – some out of confusion, and some simply because they’ve come too far to turn around. The Department of Homeland Security has projected between 9,000 and 15,000 encounters a day after the expiration, but some outside the administration believe the daily crossings could be as high as 18,000.

Just How Prepared Were They?

White House Press Secretary Karine Jean-Pierre has stuck to her guns in parroting the administration narrative that, yes, immigration will increase some in the beginning, but they’re prepared for it. There’s no crisis – either looming or current – and there is a plan in place to handle the transition. If that’s true, however, then why use Tuesday’s reply brief – the evening before the “not-a-crisis” was scheduled to begin in earnest – to ask for another week to get ready? The president fought for so long to be rid of Title 42 – but now the administration wants to hold on until after Christmas?

One wonders what would have happened had Justice Roberts denied the states’ request. Though, if one wonders too long, one might come to the conclusion that what would have happened is exactly what most Republicans and a growing number of Democrats have been warning about.

The Twists and Turns of Title 42

This isn’t the first time the policy was scheduled to expire. Biden announced the end of the regulation back in April, but a federal judge in Louisiana ruled against that decision after two dozen states sued. The president’s fight to end the order seemed to come to fruition after another court allowed the policy to end on Dec. 21, but 19 states issued what amounts to an 11th-hour challenge and asked the Supreme Court for an emergency injunction. Chief Justice Roberts agreed to press pause and gave the administration a day to respond.

The challenge – signed by Alabama, Alaska, Arizona, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming – argued lifting the order would bring chaos at the border, and that the states would be stuck dealing with the consequences. The White House countered that the states have no standing to challenge the decision – and that a permanent change to immigration policy should fall on Congress, not an executive order.

"The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings," Solicitor General Elizabeth Prelogar wrote in the response to Roberts' order. "The government in no way seeks to minimize the seriousness of that problem. But the solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification."

Title 42 could be allowed to expire on schedule, on the newly requested Dec. 27, or at any point in between. The stay could remain in place while the lower courts litigate the issues, or the Supreme Court could take the case on its merits and schedule oral arguments for 2023. A decision from on high could be handed down any time now that the government has replied.