A federal appeals court on Friday rejected a bid by several Republican-led states Title 42 is called Rule A district court has struck down a controversial Trump-era border policy.
The new ruling by the DC Circuit US Court of Appeals sets the stage for the case to reach the Supreme Court. The Biden administration is set to suspend enforcement of Title 42 — which allows the deportation of immigrants along the U.S.-Mexico border — on Wednesday.
Republican-led states have previously indicated they would seek Supreme Court intervention if the appeals court rules against them.
In the new order, the DC Circuit denied the states’ request to intervene in the case and denied the states’ request to stay the lower court’s ruling.
The unsigned order was issued by a circuit panel consisting of an Obama appointee, a Trump appointee and a Biden appointee.
They wrote that the “excessive and unexplained lack of time” of the states’ request to intervene in the case “weighs decisively against intervention”.
The case was brought by the American Civil Liberties Union in January 2021, representing several immigrants challenging the plan. The appeals court noted Friday that Republican-led states have long known that their interest in keeping the policy in place would differ from the Biden administration’s approach to the case.
They wrote the appeals court “eight months ago, the federal government issued an order terminating the Title 42 policy.”
“Yet the long-recognized conflicting interests in protecting Title 42 — the conclusion of indisputable consequences — are the only reasons states now offer for seeking to intervene for the first time on appeal,” the D.C. Circuit said. “Nowhere in their documentation do they explain why they waited eight to fourteen months to intervene.”
ACLU attorneys representing immigrants praised the court’s decision.
“States are clearly and wrongfully using Title 42 to try to limit asylum, but not for the public health purposes intended by the law,” attorney Lee Gelernt told CNN in an email. “Many of these states have strongly opposed past COVID restrictions, but suddenly believe that restrictions are necessary when immigrants are fleeing danger.”
The Biden administration’s handling of Title 42, which the Trump administration implemented during the Covid-19 pandemic, has been the target of lawsuits from supporters and opponents of the program.
Last month, U.S. District Judge Emmett Sullivan halted the plan. But Sullivan suspended his ruling for five weeks to give the Biden administration time to prepare Prepare for the windfall of policy. The administration is also appealing the ruling, arguing that the program is legal even though federal public health officials have determined it is no longer needed.
As the Dec. 21 deadline for Sullivan’s ruling to take effect approaches, officials are bracing for an immigrant uprising. More than 1 million immigrants have been deported under the provision, a public health authority that the Trump administration began using to deport immigrants at the start of the Covid-19 pandemic before it went through the asylum application process.
Republican-led states, in efforts to intervene in the case, charge that allowing the policy to stand still would “cause a major disaster at the border.”
“The massive increase in immigration in the event of such a stop would necessarily increase states’ law enforcement, education, and health care costs,” they argue.
The Biden administration has resisted states’ attempts to intervene and their demand to uphold the policy, calling the demands untimely and unreasonable.
“States may have sought to intervene after the CDC took action to halt Title 42 orders in April 2022,” the administration wrote.
Immigrants challenging the program in the case opposed the states’ request, filing in court that the states are “transparently interested in Title 42 as a restriction on immigration and asylum” rather than a public health measure.
The Biden administration tried to freeze the Title 42 program in 2021, but a mostly GOP-led coalition of states — in a separate lawsuit filed in Louisiana — successfully sued the Department of Homeland Security to stop it from ending enforcement.
This story has been updated with additional details.