Supreme Court rules to keep Title 42 in place, so what's next?

AUSTIN, Texas - The legal battle over a Trump-era border policy known as Title 42 is far from over.

The outcome of this fight could have important implications for the crisis at the Texas-Mexico border. 

The Supreme Court's Dec. 27 ruling preserves Title 42, which was scheduled to expire under a judge's order on Dec. 21. The case will be argued in February and a stay imposed last week by Chief Justice John Roberts will remain in place until the justices make a decision.

READ MORE

• What happens at the border if the Trump-era policy Title 42 is lifted?
• Title 42: Judge orders halt to Trump-era asylum restrictions at border
• How will asylum work after Title 42 ends? No one knows yet

FOX 7 Austin's John Krinjak talks with Eddy Carder, a constitutional law professor at Prairie View A&M, about the policy and what's next.

JOHN KRINJAK: This week, the Supreme Court essentially blocked the White House from lifting Title 42. So what is that? What are the implications of this essentially temporary decision?

EDDY CARDER: Exactly. Title 42 is an interesting law. It really emerged from the context of World War Two and became federal law. It was it represents what we might consider to be an effort to maintain public health and social welfare in the nation. It essentially allows the federal government or gives the federal government the ability to take emergency action in order to prevent the spread of communicable diseases and a nation that might find access via migration or immigration. More recently, President Trump invoked Title 42 in 2020, when the COVID pandemic began as a means really not so much of preserving public health, but really, as some would allege, an immigration policy, an effort to limit immigration policy. And so that's kind of the context from which Title 42 emerged.

JOHN KRINJAK: And so we saw Title 42 about to be lifted. The Supreme Court put that on hold, kept it in place temporarily. So where does the battle go from here? Obviously, the court system, including the Supreme Court, not done with this, right. 

EDDY CARDER: It is not over with. They have made some rulings already. First of all, the Supreme Court issued a ruling in the Title 42 case, I guess we might call it a ruling of a sword. What they essentially did was they say to federal judges' nationwide vacature of Title 42. That's the first thing they did. A federal judge in the U.S. vacated vital Title 42. And as a result, things went before the Supreme Court and they vacated that. The second thing the court did and their most recent decisions consisted of they have limited their consideration of Title 42 to only consideration, as I understand it, of the question of intervention. How can they intervene? Should they intervene in the suspension of Title 42? And then finally, the court probably will hear oral arguments or is scheduled to hear oral arguments in February. And at that time, the court will make a more final decision with regard to the applicability and the relevance of Title 42 in the current context.

JOHN KRINJAK: What do you think the implications would be if Title 42 is lifted? And when you look at immigration broadly, you know, how much bigger is this than just this one issue? 

EDDY CARDER: It's a very broad issue. The debate essentially centers around the idea of, is Title 42 a public health policy or is Title 42 an immigration policy? Originally, it was intended as a public health matter. And I think it's safe to say that really with the emergence of COVID and the invocation of the role of Title 42 in 2020 by the Trump administration, it morphed into more of a migration policy, and that's especially problematic. The other problems that come about as a result of the potential suspension of Title 42 is that there and the argument is made there's going to be massive migration to the border states as a result of that suspension, and authorities will not be able to more expeditiously force migrants back to their countries of origins. So some estimate as many as up to 18,000 migrants per day flooding into the nation on the suspension of Title 42. Another change that I would cite briefly is the idea that the process is going to be radically altered with regard to handling immigration, for example, whereas under Title 42, immigration is handled more quickly and perhaps some would say more efficiently. If it is suspended, the migrant will be either removed or detained, or, as the habit seems to have been released into the U.S. and then given a later court date in which they appear as their case makes its way through the immigration court and judicial court system. So it's really going to elongate and extend the process. So there are some very, very practical implications for the border states on this matter.

JOHN KRINJAK: Such a complex issue. So many ins and outs here. And we appreciate you breaking them down for us. Professor Eddie Carter, appreciate your insight. Always good to have you here.

EDDY CARDER: Thank you very much for having me. Always enjoy it.