The Biden administration is set to lift use of Stephen Miller’s anti-asylum Title 42 policy next week, following a court ruling last month that found the debunked policy to be “arbitrary and capricious.” The policy, implemented under political pressure in March 2020, has used the pandemic as an excuse to quickly deport asylum-seekers in violation of their rights.
But that awaited Dec. 21 date could now be up in the air, following an emergency appeal from 19 Republican attorneys general seeking to halt Judge Emmett Sullivan’s November decision, CBS News reports. Parties are seeking a ruling by this Friday, “followed by a probable appeal to SCOTUS after if they lose,” tweeted immigration reporter Hamed Aleaziz.
RELATED STORY: 'Arbitrary and capricious': In victory for asylum-seekers, judge orders end to Miller pandemic order
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Sullivan had previously issued rulings preventing both administrations from fully carrying out the policy. In his more recent ruling, “Sullivan said the rule violates the Administrative Procedures Act and argued that it’s ‘arbitrary and capricious,'" NBC News reported, and that "the CDC failed to properly explain the rationale for authorizing an unprecedented expulsion authority," CBS News said.
We now know that policy was initially opposed by actual public health experts within the CDC, “who said there was no evidence the action would slow the coronavirus,” the Associated Press reported in October 2020. But they were overruled by Miller and former Vice President Mike Pence.
The Biden administration said it would not appeal Sullivan’s ruling, but did request a delay in the order’s implementation to “allow the government to prepare for an orderly transition to new policies at the border.” The administration would end up later filing an appeal defending its authority to use the public health order, but “did not seek to have the Dec. 21 termination date delayed, saying it was prepared to lift the restrictions,” CBS News noted.
Texas is unsurprisingly among this anti-asylum coalition seeking to delay the Biden administration from lifting the policy. The state’s very corrupt attorney general, Ken Paxton, has frequently run to judges appointed by the insurrectionist president in order to block policies that aren’t hurting migrants.
But a very real danger is that this public health order is now just being seen as an immigration policy, and one that may stick around indefinitely. While Thom Tillis and Kyrsten Sinema have reportedly been discussing a possible proposal that would permanently protect Deferred Action for Childhood Arrivals recipients, it would also extend the Title 42 order for another year, maybe longer. Other lawmakers not leading the proposal have also been urging the Biden administration to continue Miller’s policy. The letter text from Joe Manchin, John Cornyn, Henry Cuellar, and Tony Gonzalez focuses entirely on Title 42’s as a border enforcement policy, and makes zero mention of COVID-19 or public health.
“Not one person in DC is even pretending anymore that Title 42 has anything to do with public health,” tweeted American Immigration Council Policy Director Aaron Reichlin-Melnick. “Many politicians have even convinced themselves that it's an immigration law. Here's the law. All 128 words of it. Give it a read and you'll see why its current use is illegal.” Recent polling has shown that an overwhelming majority of Americans support “investing more resources in building an asylum system that is fair, fast, and accurate.”
“In the full sample of Americans, 82% strongly or somewhat support greater investment, with a plurality of Americans (40%) expressing strong support. 89% of Democrats, 71% of Republicans, and 84% of Independents either strongly support or somewhat support,” the polling continued.
NBC News reports that the Biden administration is also considering other anti-asylum policy basically lifted from the previous administration. This would be totally out of touch with the midterms, where voters largely rejected nativist candidates who’d bear-hugged nativist policies. “It’s hard to comprehend that after two years, and a successful midterm election, the White House is resorting to policies they once considered illegal & cruel,” tweeted Andrea Flores, a former Biden administration official.
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