Biden administration gears up for end of Trump-era border restriction as Supreme Court considers whether to keep it in place

By Priscilla Alvarez, CNN

The Biden administration is still bracing for the end of a Trump-era border restriction even after the chief justice of the Supreme Court temporarily paused the end of the program.

The administration now faces a 5 p.m. ET Tuesday deadline to respond to an emergency appeal filed by Republican-led states that asked Chief Justice John Roberts to pause the end of Title 42. That authority allows the federal government to quickly expel migrants who have crossed the southern border, citing the Covid-19 pandemic. Roberts on Monday afternoon granted the temporary pause and ordered the administration to quickly respond.

The White House had been spending Monday preparing for the end of the program at midnight on Wednesday in accordance with a lower court’s order. Border officials were thankful for the brief pause of the termination of Title 42, but were proceeding with planning anyway, two senior US Customs and Border Protection officials told CNN.

“Everyone is breathing a collective sigh of relief, albeit a temporary one,” one official said Monday night.

Border officials across the US-Mexico border were on regular phone calls over the weekend preparing for the anticipated end of Title 42 and have been working with the Mexican government to try to stem the flow, the official added.

In the Del Rio sector, for example, officials predicted that the number of migrant encounters could double from 1,700 a day to 3,500 a day when Title 42 ends, straining overwhelmed resources in a remote area of the border.

Despite Monday’s decision, the administration is moving forward with planning.

“We’re going on as if nothing’s changed,” one of the officials said, adding that policy discussions are still underway to provide other legal pathways to Nicaraguans, Haitians and Cubans who make up a large number of encounters.

As for what happens on Wednesday if the expiration is still on hold, one official said there may be a “mini surge.”

“I think there’s some that probably haven’t gotten the message and won’t until they cross,” the official said. “There are some already committed who will cross.”

Inside the White House, the pause on the termination will not have any effect on what have been intense behind-the-scenes preparations for the end of the authority, according to a White House official.

While the Department of Homeland Security serves as the lead agency on the issue, it has been a central focus for the last several weeks inside the West Wing, with senior White House officials playing a significant role in the internal debates over policy options to address an expected surge of migrants at the border. There are no plans to slow the ongoing effort, the official said, given the possibility any delay is only brief in nature.

“We’ve always been aware of the role the courts have in this process, but it’s not something that changes the approach,” the official said.

Texas deploys Guardsmen to border

The humanitarian situation on the Mexico side of the border has grown dire, with thousands upon thousands of migrants arriving in anticipation of Title 42’s end.

Non-profit organizers in the area have told CNN the migrants — who are mostly from Venezuela and Haiti — are living on the streets, in abandoned homes and on sidewalks, and describe a chaotic scene where mothers can be seen with hungry and sick children.

In response to the build-up of migrants on the Mexico side of the border, the Texas government is making its own moves to prepare for a potential surge.

Early Tuesday morning, CNN spotted a deployment of National Guardsmen along the southern border at El Paso, Texas. The mobilization along the El Paso-Ciudad Juarez border appears to be part of Texas Gov. Gregg Abbott’s Operation Lone Star, a border security mission launched last year.

For over a year, Abbott has been deploying state resources to the US-Mexico border, including National Guardsmen. The move was an affront to the Biden administration and garnered widespread criticism for militarizing the border. It also fueled frustrations among members of the Guard.

Sgt. Jason Archer with the Texas Military Department Public Affairs told CNN “the wire that’s being placed is temporary” and will be up for an “undetermined amount of time.” Archer said it was placed “to support law enforcement” and was not done in conjunction with US Border Patrol.

The National Guard generally serves in a support role and notifies US Border Patrol if they encounter migrants, so that agents can pick them up. Last year, in Del Rio, Humvees were located along the border at observation points with soldiers assigned to them to monitor for activity.

During the Haitian surge last September, Abbott similarly positioned vehicles to try to prevent crossings.

In a news release Monday, the Texas Military Department said more than 400 Texas National Guard personnel “will be mission ready” to help assist with the migrant situation near the El Paso border.

“Four C-130J cargo aircraft are expediting the movement of Soldiers and equipment to El Paso as part of Governor’s enhanced border security effort,” the release said. “The force of more than 400 personnel will be mission ready in El Paso Monday afternoon.”

The Texas Military Department also said the increase in National Guard members at the border is “in response to high levels of illegal border crossings over the past week and the pending expiration of Title 42.”

After the Texas National Guard increased its posture along the border, Democratic El Paso County Judge Ricardo Samaniego lamented the guard’s construction of fencing and barbed wire at the border.

“That’s not their role and my concerns are becoming a reality. I am very confident that it was not coordinated with Border Patrol. I have always insisted that any assistance from the state has to be part of our overall strategy and in lockstep with our own enforcement strategy,” the county judge told CNN.

“I was very explicit from the beginning that we needed humanitarian support from the State and that any law enforcement actions such as these be coordinated through Chief Jaquez,” Samaniego added, referring to US Border Patrol’s El Paso Sector chief. CNN reached out to US Customs and Border Protection for comment.

Uncertainty and concern across the nation as Supreme Court deliberates

The sense of urgency around the end of Title 42 — and the uncertainty injected into the process by Roberts’ temporary pause — is causing consternation among state and local officials across the country.

Democratic New York City Mayor Eric Adams said his administration is monitoring the potential surge along the southern border in response to Title 42’s end and how Roberts’ temporary pause may impact New York City.

“We continue to closely monitor the situation regarding Title 42 and will wait to hear more from the Supreme Court,” Adams said in a statement. “But regardless of the outcome, New York City has received 800 asylum seekers in just the past four days and it’s time for our state and federal partners to act. We need financial resources to continue serving the tens of thousands currently in our care currently and all those still arriving every day.”

New York City is expected to get a substantial chunk of a newly created $800 million pot in federal aid that’s aimed at providing relief to cities that have been overwhelmed by asylum seekers, a source close to Senate Majority Leader Chuck Schumer told CNN. The extra funding is expected to be included in the omnibus spending bill that Congress must pass before the end of the year.

The Federal Emergency Management Agency’s Emergency Food and Shelter Humanitarian program reimburses cities that provide food, shelter, transportation, basic health and other needs to asylum seekers. Schumer negotiated an increase to the EFSH pot from the original $150 million to the now $800 million despite GOP opposition, the source said.

New York City will be able to tap into these funds, though the exact dollar amount the city will get is unknown, and will still be eligible for additional funding from other grants, the source said. The funding will also support CBP, allowing them to process asylum seekers quicker, and will support the construction and expansion of shelter facilities that should address capacity issues, particularly in New York, the source added.

The coalition of GOP-led states asked Roberts to overturn a DC Circuit US Court of Appeals decision that refused to block the end of Title 42, citing their own concerns about an increase in unlawful crossing as the southern border.

Arizona Attorney General Mark Brnovich — who took the lead for the states — said in a statement on Monday that “getting rid of Title 42 will recklessly and needlessly endanger more Americans and migrants by exacerbating the catastrophe that is occurring at our southern border,” adding: “Unlawful crossings are estimated to surge from 7,000 per day to as many as 18,000.”

Brnovich had told the justices in court papers that they should put the lower court ruling on hold. As an alternative, he said that the justices should grant an “immediate” temporary injunction to maintain the status quo and also consider whether to skip over the appeals court and agree to hear arguments on the merits of the issue themselves.

“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,” Brnovich argued.

Roberts is likely to refer the matter to the full court after the administration submits its response on Tuesday. The chief justice’s brief order signaled that he was looking to move quickly.

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CNN’s Ariane de Vogue, Rosa Flores, David Culver, Gloria Pazmino, Phil Mattingly, Ed Lavandera, Ashley Killough, Rebekah Riess, Mark Morales and Kevin Liptak contributed to this report.