Title 42 Remains in Place

The Supreme Court yesterday ruled 5-4 the Biden administration must keep in place pandemic-era border controls while it considers a separate legal challenge to the order. Anticipation over the possible lifting of the policy, known as Title 42, has led to a surge of migrants arriving at the US-Mexico border in recent weeks.

The directive, implemented in March 2020 as an emergency health order, allows the quick expulsion of migrants without the opportunity for them to claim asylum, as typically required by law. The Biden administration has sought to rescind the order, while a coalition of Republican states has sought to keep the policy in place amid a historic flow of migrants over the past year.

More than 2.3 million encounters were made along the Southwest border during FY2022—about 40% were expelled under Title 42 (see data), primarily single adults. Data released Friday showed the highest-ever number of encounters made during the month of November, at more than 233,000.

The policy will stay in place at least until the court decides whether the states have the ability to challenge a previous ruling that Title 42 violated procedural laws.