Biden administration tells Supreme Court Title 42 will end when Covid-19 public health emergency expires

By Priscilla Alvarez and Ariane de Vogue, CNN

The Biden administration told the Supreme Court Tuesday that its intent to let the coronavirus public health emergency expire in May will moot the ongoing case over a Trump-era border restriction.

“Absent other relevant developments, the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot this case. The government has also recently announced its intent to adopt new Title 8 policies to address the situation at the border once the Title 42 orders end,” Solicitor General Elizabeth Prelogar wrote in a filing submitted to the high court.

The Trump administration invoked Title 42 at the onset of the coronavirus pandemic. The public health authority allows border officials to turn away migrants encountered at the US-Mexico border in the name of Covid-19 prevention.

Title 42 has been the subject of ongoing litigation amid efforts to end the authority.

Last year, Republican-led states, which had already filed suit in a separate court, requested to intervene in a case, arguing that the program should be left in place. The Supreme Court agreed to leave the program in effect and said it would hear arguments on March 1 on whether the GOP-led states can intervene. The administration’s brief was filed in advance of those scheduled arguments, which could potentially be impacted.

“The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render this case moot: Because the Title 42 order would have ‘expired by its own terms,’ this suit seeking only prospective relief would ‘no longer present a “live case or controversy,'” the filing states.

“In that event, the government will ask the court of appeals to vacate the district court’s judgment and remand with instructions to dismiss private respondents’ suit as moot,” it continues.

The Biden administration first announced it would suspend the controversial public health order last April, with the US Centers for Disease Control and Prevention saying at the time that Title 42 was “no longer necessary.”

But that effort was blocked by a federal judge in Louisiana, until another federal judge in the District of Columbia ordered it to end. The Supreme Court in December ordered the restriction to remain in effect while legal challenges play out — a victory for the GOP-led states.

Arizona Attorney General Mark Brnovich — who took the lead for the states — has said 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.”

During the monthslong legal saga, the Biden administration continued to use Title 42 to send migrants who unlawfully crossed back over the border.

The authority — which was heavily criticized by public health experts and immigrant advocates — had largely barred asylum at the US-Mexico border, marking an unprecedented departure from traditional protocol. Its end could restore access to asylum for arriving migrants, allowing them to enter the US and make their case in immigration court.

This story has been update with additional details.

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CNN’s Jack Forrest and Catherine E. Shoichet contributed to this report.