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Supreme Court rules pandemic-era immigration policy will remain in effect


The Supreme Court says Title 42 will stay in place for now. That policy lets immigration authorities quickly remove migrants before they can ask for asylum or other protections. The Trump administration put it in place as a public health order. The Biden administration had planned to end it. But today, the justices sided with Republican state officials who want to keep Title 42.

The ACLU has been pushing to end the policy, and Lee Gelernt is the group's lead attorney on the case. Welcome.

LEE GELERNT: Thanks for having me.

SHAPIRO: This is not the final word. So what exactly did the Supreme Court do today?

GELERNT: So the Supreme Court kept Title 42 in place, which was deeply disappointing, and then set the case on for argument on an expedited schedule of February. But they will not be looking at the merits of the legality of Title 42, only whether the 19 states that sought to intervene can now intervene, whether the Court of Appeals was correct to deny their intervention. So the case will continue. I think there's no question at this point that Title 42 needs to end. There's no longer a public justification or a public health justification.

SHAPIRO: So you're saying the Supreme Court will decide whether these 19 states have standing, have a right to dispute it, not whether the policy itself is legitimate.

GELERNT: Exactly. And so unfortunately, this is a delay, and it's going to mean real harm on the ground, what the court of appeals called stomach-churning evidence. Families with little children are literally being asked to walk the plank directly into the hands of cartels. So this delay will mean real harm on the ground, but we will continue fighting.

SHAPIRO: Title 42 is a public health order. As you mentioned, it was tied to the pandemic. Legally speaking, does it matter whether the pandemic is raging, whether people are vaccinated? Does the public health scenario have any impact on the legal question at the heart of this?

GELERNT: Well, it absolutely does because what the CDC said is there is no longer a public health justification. And the statute on which they were relying allows them only to stop people at the border if there's a public health justification. It cannot be used as a border management tool. And it's now clear the states are transparently and, quite frankly, hypocritically trying to use it as a border management tool. We can talk about whether the asylum system should be revised. We are in favor of a fair but efficient asylum system, but we can't continue to misuse the public health laws.

SHAPIRO: The White House Press secretary Karine Jean-Pierre says the administration will comply with the order and is advancing preparations to manage the border when Title 42 eventually lifts. When do you ultimately expect this to be resolved?

GELERNT: You know, it's hard to say. We are hoping that this spring, Title 42 will end, but we'll have to see what the court does. I think it cannot end soon enough. There's just too many people who have been sent back to rape, torture, death and persecution.

SHAPIRO: All right. That is Lee Gelernt of the American Civil Liberties Union. Thank you very much for talking with us today.

GELERNT: Thanks for having me. Transcript provided by NPR, Copyright NPR.

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William Troop
William Troop is a supervising editor at All Things Considered. He works closely with everyone on the ATC team to plan, produce and edit shows 7 days a week. During his 30+ years in public radio, he has worked at NPR, at member station WAMU in Washington, and at The World, the international news program produced at station GBH in Boston. Troop was born in Mexico, to Mexican and Nicaraguan parents. He spent most of his childhood in Italy, where he picked up a passion for soccer that he still nurtures today. He speaks Spanish and Italian fluently, and is always curious to learn just how interconnected we all are.
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.