Title 42 weighed by Supreme Court as White House declares unusual ‘lid’

WASHINGTON — The White House press office declared a mid-morning “lid” on Tuesday as the Supreme Court weighs the fate of the Title 42 pandemic migration policy — while border communities and major US cities brace for a potential humanitarian crisis.

A White House pool report sent at 10:35 a.m. relayed that President Biden’s staff declared the lid, which means that no public events are planned or likely to happen.

It’s unusual to call a presidential lid so early in the day, since major domestic or international news could prompt schedule changes.

Supreme Court Chief Justice John Roberts paused plans Monday to lift Title 42 in response to a lawsuit filed by the American Civil Liberties Union. The Biden administration had until 5 p.m. Tuesday to respond to an appeal from a group of 19 Republican-led states that sought to keep the policy in place.

Although Biden will remain out of public view Tuesday, reporters may have fleeting opportunities to ask Vice President Kamala Harris — the administration’s migration czar — about the border crisis Tuesday afternoon when she hosts swearing-in ceremonies for four unrelated positions.

The Title 42 policy, established in 2020 by the Centers for Disease Control and Prevention, allowed US border officials to quickly expel people suspected of illegally crossing the border due to the COVID-19 pandemic — rather than go through time-consuming legal processes to deport them or evaluate their asylum claims.

The Biden administration sought to end Title 42 earlier this year but a federal judge in Louisiana halted the initial bid in May. The authority may ultimately be lifted in response to a DC federal judge’s ruling in the separate ACLU lawsuit, a case in which the Biden Justice Department filed a nominal appeal before asking the matter to be held over in anticipation of a replacement policy.

In practice, the Biden administration already has relaxed use of Title 42 — immediately allowing unaccompanied minors to remain in the US and gradually allowing in more family units and single adults.

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The Associated Press estimates that 50,000 people are waiting on the Mexican side of the southern border with plans to illegally cross this week if Title 42 ends.

Under the Trump administration, federal prosecutors led by then-Attorney General Jeff Sessions attempted a “zero tolerance” policy of prosecuting all adults who illegally crossed the border, but that initiative flopped amid an outcry over the separation of migrant parents from their children.

Since Biden took office last year, the border has experienced record amounts of illegal border crossings by people from across the world.

Critics blame the border rush on Biden’s more welcoming rhetoric, including his call for legislation to legalize most current illegal immigrants living in the US. Some migrants have cited his words when questioned by journalists about their trek.

Biden halted construction of former President Donald Trump’s US-Mexico border wall — though officials have quietly moved to close some gaps — and ended Trump’s “Remain in Mexico” policy that required migrants to await asylum decisions south of the border.

The White House in September attempted to explain the growing border crisis by saying that migrants were “fleeing communism” — even though most were not — before adopting a policy to rapidly expel Venezuelan migrants fleeing their country’s authoritarian socialist government while continuing to admit other nationalities.

Before the Supreme Court stepped in on Monday, White House press secretary Karine Jean-Pierre teased looming policy announcements set for Tuesday that might serve to head off a border rush — potentially by taking further steps toward restoring Trump’s “Remain in Mexico” policies.

Nearly 2.4 million people were detained after crossing illegally into the US in fiscal year 2022, which ended Sept. 30 — an increase from 1.7 million in fiscal year 2021, fewer than 500,000 in fiscal year 2020 and nearly 1 million in fiscal year 2019. Those figures do not include migrants who evaded arrest.

Local officials say they fear what would happen if Title 42 ends after already managing massive migrant influxes.

New York City Mayor Eric Adams, a Democrat who styles himself the “Biden of Brooklyn,” said Sunday, “We’ve already received more than 31,000 asylum seekers into our city, and … we have been told … we should expect an influx of busses coming from the border and that more than 1,000 additional asylum seekers will arrive in New York City every week.”

Adams added, “With the expiration of Title 42 just days away, we need the federal government — both in the administration and in Congress — to share their plans to move asylum seekers to other cities, to allow asylum seekers to work, and to send aid to the cities that have borne the brunt of this crisis.”

El Paso’s Democratic Mayor Oscar Leeser declared a state of emergency Saturday as migrants already released by immigration officials slept on the streets — with thousands more expected once Title 42 lifts.

“I really believe that today our asylum-seekers are not safe as we have hundreds and hundreds on the streets, and that’s not the way we want to treat people,” Leeser said, according to the Texas Tribune.

“Our border community is facing an extraordinary humanitarian crisis,” said Texas Democratic state Sen. César Blanco, who represents El Paso.