Nineteen states joined an application to the Supreme Court this week, requesting the expiration of Title 42 be put on hold until a higher court can review the decision made by the U.S. District Court of the District of Columbia to allow its sunsetting.
A court ordered the Biden administration to stop using authority under Title 42 – a public health order that has been used since the beginning of the COVID-19 pandemic to return migrants to Mexico – after it was found to be unlawful.
As a result, Title 42 will go away at 12:01 a.m. on Dec. 21, or this Wednesday.
The nineteen states seeking a stay order from the SCOTUS are Arizona, Louisiana, Missouri, Alabama, Alaska, Kansas, Kentucky, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Tennessee, Utah, Virginia, West Virginia, and Wyoming.
The applicants suggest, in the legal document, that the federal government picks and chooses when to use certiorari, or a higher court review. In this case, the applicants said the Federal Government sought to leverage a litigation loss as a basis to immediately repeal an unwanted rule without using notice-and-comment procedures, circumventing the Administrative Procedure Act, or APA.
“The United States’ ‘it’s legal when we say it’s legal’ premise lacks any pretense of propriety,” the application reads. “And its too-cute-by-half tactic of taking an appeal only after the States sought intervention, then moving to hold that appeal in indefinite abeyance is not substantively different from capitulation.
“No one reasonably disputes that the failure to grant a stay will cause a crisis of unprecedented proportions at the border,” the applicants added.
The Department of Homeland Security, or DHS, estimates daily illegal crossings may jump from 7,000 to 15,000 per day once Title 42 is terminated.
Because of the anticipated increase in illegal immigrants crossing the border after Title 42 expires, DHS sought $3-$4 billion to manage the influx, which the Biden administration has agreed to provide.
Still, the nineteen states are pushing for more review before Title 42 expires.
“…Failure to grant a stay here will inflict massive irreparable harms on the states, particularly as the States ‘bear many of the consequences of unlawful immigration,” the application reads. “Indeed, even California Governor Gavin Newsom recently declared that the termination of Title 42 will ‘break’ California’s ability to handle the influx.”
For those reasons, the 19 states requested the SCOTUS grant a stay until a certiorari can occur. In the meantime, the states also requested an immediate administrative stay pending resolution of the stay request.