Supreme Court Gives Title 42 Political Fig Leaf to WH and Mayorkas

WASHINGTON, DC - AUGUST 03: U.S. President Joe Biden, appearing via teleconference, delivers remarks at a meeting of the Task Force on Reproductive Healthcare Access during an event at the White House complex August 3, 2022 in Washington, DC. Abortion rights advocates achieved a victory yesterday in Kansas when voters rejected a proposed constitutional amendment that would have allowed state legislators to ban or significantly restrict abortion. Also pictured is Homeland Security Secretary Alejandro Mayorkas (R). (Photo by Win McNamee/Getty Images)

The U.S. Supreme Court’s decision to keep the Title 42 border barrier has given a political fig leaf to President Joe Biden and his pro-migration border chief, Alejandro Mayorkas.

The court ordered that the very popular Title 42 barrier be kept operating for the next several months while it decides a very different issue — how much authority the states have to shape federal migration policy.

The decision is good for President Joe Biden “because the Biden administration has been using Title 42 as cover, as a distraction, from the fact that they’ve given up enforcing immigration laws,” said Mark Krikorian, the director of the Center for Immigration Studies:

The lifting of Title 42 would bring into full focus the fact that this administration isn’t doing its job. In a sense, [preserving] Title 42 helps the Biden folks mask their real policy preferences … But it doesn’t move us toward better policy, which ultimately, I think, would be the result of ending Title 42.

Title 42 is a legalistic cover for the pro-migration border policies set by Biden’s pro-migration investors and their progressive open-borders allies.

For example, in November, Mayorkas admitted seven out of ten migrants — or 167,000 out of 233,000 through various quasi-legal loopholes. Some were flown home, but many who feared being flown home instead hired cartel guides to help them walk across the border at nighttime as so-called “gotaways.”

That policy is shielded from public criticism because the national media is eager to hide the inflow numbers from Americans.

A chart shows the dramatic, blue-colored rise in admitted migrants after President Donald Trump lost the 2020 election:

The federal government has long operated an economic policy of “Extraction Migration” which pulls human resources from poor countries and uses the imported people to grow investors’ revenues and profits. The inflow has forced down Americans’ wages and boosted their rents and housing costs. The inflow has also pushed many native-born Americans out of careers in a wide variety of business sectors, reduced native-born Americans’ clout in local and national elections, and extracted vast amounts of human resources from needy, poor countries.

That extraction strategy has imported at least 3 million legal, illegal, or temporary migrants in 2022 — or almost one migrant for every American birth.

Biden’s turnstile border security is being managed by a Cuban-born, pro-migration zealot Alejandro Mayorkas. In a statement after the court’s decision, Mayorkas promised no change to the inflow:

 The Title 42 public health order will remain in effect and individuals who attempt to enter the United States unlawfully will continue to be expelled to Mexico or their home country … The border is not open, and we will continue to fully enforce our immigration laws.

Biden’s press secretary, Karine Jean-Pierre, a Caribbean immigrant, also promised to welcome more migrants across the border:

The Supreme Court’s order today keeps the current Title 42 policy in place … At the same time, we are advancing our preparations to manage the border in a secure, orderly, and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration. 

The new pathways for economic migrants get little recognition from establishment media.

Biden quickly accepted the court’s fig leaf, telling reporters, “The court is not going to decide until June apparently, and in the meantime we have to enforce it — but I think it’s overdue [for removal].” 

So far, Biden has declined to use his alternative 212(f) power to block migrants. The legal section says:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Republicans played up the Title 42 announcement as a win, even though it will do little to reduce the inflow.

“Today, SCOTUS handed Texas and the USA a huge victory by allowing Title 42 to remain in place after Biden illegally tried to terminate this critical policy,” said a tweet from Texas Attorney General Ken Paxton. “Today, SCOTUS handed Texas and the USA a huge victory by allowing Title 42 to remain in place after Biden illegally tried to terminate this critical policy,” he added.

WASHINGTON, DC - MAY 12: Texas Attorney General Ken Paxton speaks at a news conference on the U.S. Southern Border and President Joe Biden’s immigration policies, in the Hart Senate Office Building on May 12, 2021 in Washington, DC. Homeland Security Secretary Alejandro Mayorkas will testify on May 13 before the Senate Homeland Security and Governmental Affairs Committee on the DHS treatment of unaccompanied minors at the U.S. Southern border. (Photo by Anna Moneymaker/Getty Images)

Texas Attorney General Ken Paxton speaks at a news conference on the U.S. Southern Border and President Joe Biden’s immigration policies, in the Hart Senate Office Building on May 12, 2021, in Washington, DC. (Anna Moneymaker/Getty Images)

“This is only a temporary fix to a crisis that President Biden and his administration have ignored for two years … I look forward to the Supreme Court deciding this issue during this year’s term.” said a December 27 statement from Iowa Gov. Kim Reynolds.

DAVENPORT, IOWA - OCTOBER 31: Iowa Gov. Kim Reynolds speaks at a campaign event for Senate candidate Sen. Joni Ernst (R-IA) at Dahl Auto Museum as part of Ernst's RV tour of Iowa on October 31, 2020 in Davenport, Iowa. Republican incumbent Ernst is in a tight race with Democratic challenger Theresa Greenfield in the upcoming general election on November 3rd. (Photo by Mario Tama/Getty Images)

Iowa Gov. Kim Reynolds speaks on October 31, 2020, in Davenport, Iowa. (Mario Tama/Getty Images)

But the only aspect of the issue to be decided in the lawsuit is how much can governors reshape federal immigration policies. The Title 42 case does not deal with the President’s claimed ability to import large foreign populations.

However, the Supreme Court is also considering a prior lawsuit that says the federal government is ignoring the law’s requirement that it detains all asylum migrants. The court will consider the two lawsuits simultaneously — and may allow the reality of Biden’s open borders to influence its decisions in both cases.

The court’s ad-hoc temporary preservation of the open-borders status quo was recognized by two of the nine U.S. Supreme Court justices.

“It is unclear what we might accomplish,” said a pair of judges, Justices Neil Gorsuch and Ketanji Brown Jackson:

Even if at the end of it all we find that the States are permitted to intervene, and even if the States manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed.

The only plausible reason for stepping in at this stage that I can discern has to do with the States’ second request. The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. The only means left to mitigate the crisis, the States suggest, is an order from this Court directing the federal government to continue its COVID-era Title 42 policies as long as possible — at the very least during the pendency of our review.

But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.

“Justice Gorsuch got it right,” said a tweet from the Immigration Law & Justice Network. “SCOTUS is now acting not as a court, but as a policymaker. All parties involved basically admit that #Title42 has nothing to do with COVID, but still think it’s a good idea. It isn’t.”

“Yeah. 5 justices on the Supreme Court (and quite a lot of Senators, including some Democrats) think we shouldn’t have a right to asylum to the extent we have today,” said a tweet from Aaron Reichlin-Melnick, a migration advocate at the American Immigration Council. “But they’re too afraid to actually have that debate, and thus are hiding behind this verkakte excuse,” he added.

In reality, polls show that economic migration is increasingly unpopular among Republicans, Democrats, and swing voters.

Republican politicians likely gain from the continued chaos at the border, Krikorian suggested.

“The discussion of the title 42 hasn’t really focused on the issue of jobs — it is more about the administration’s refusal to do its job and its subversion of federal law … So keeping this in the news helps Republicans as well,” said Krikorian.

In general, GOP politicians are eager to denounce very unpopular illegal migration — but are worried about pushback from the major donors who want more imported consumers, renters, and workers. So they rarely mention the inflow numbers or the pocketbook damage of migration to ordinary Americans, or the 212(f) clause.

A few media outlets have hinted to readers about D.C.’s deceptive immigration policies.

“The administration asked to end Title 42, but there was no clear plan for how they would have managed the inevitable influx. … The ruling brings a sense of relief that officials may not publicly acknowledge,” Justin Gest, a professor at George Mason University, told the New York Times.

“The Biden administration has tried to have it both ways on Title 42 by arguing for it to expire while also noting the catastrophic effects its expiration will have on the crisis at our southern border,” said a statement from Sen. John Cornyn (R-TX). “I’m glad the Supreme Court has decided to rule on this case and help end the [political] ambiguity,” said Cornyn, who also zig-zags between rival donors and voters.


Sen. John Cornyn (R-TX) in the Russell Senate Office Building on Capitol Hill in Washington, D.C., on Wednesday, February 24, 2021. (Tom Williams/CQ Roll Call)

However, the court’s intervention may slow the growth of the Mayorkas-managed migration by preserving the loopholed Title 42 barrier for several months.

The New York Times reported on December 27:


But many migrants are allowed to cross the border regardless of Title 42, and face minimal risk of being deported, despite federal law.

“We waited for the 21st [when Title 42 was scheduled to be removed], but once nothing changed, we crossed by hiding and running at night,” one Venezuelan migrant with a four-year-old child told El Paso Matters. The report added:

“We crossed seven countries to get here, we are not giving up,” she said while sitting with others outside the Greyhound bus station in Downtown El Paso. “We will never give up because there is no future back home.”

Hundreds of migrants, most from Venezuela, were gathered Tuesday outside Sacred Heart Catholic Church in South El Paso. Without travel authorization from the Border Patrol, they face challenges getting out of El Paso.

The growth of illegal migration is being driven by the success of at least 3 million migrants who have crossed the southern border in 2021 and 2022. They are now working U.S. jobs, renting U.S. housing, sending their kids to U.S. schools — and displaying their success via cell phones to many millions of people in South America, Africa, and Asia.

But, in economic terms, there is little difference between the 3 million economic migrants and the more than 2 million legal migrants and visa workers also admitted by the administration since January 2021.

This huge inflow is distorting the nation’s economy to the benefit of the coastal investors who helped fund Biden’s 2020 campaign and who fund many of the pro-migration groups that are helping migrants get into U.S. jobs and housing.

For example, is one of the leading advocates for more migration. The breadth of investors who founded and funded was hidden from casual visitors to the group’s website. But copies exist at other sites. The 2013 founders included Facebook founder Mark Zuckerberg, Microsoft founder Bill Gates, and investors such as John Doerr at Kleiner Perkins, Matt Cohler at Benchmark, and Breyer Capital CEO Jim Breyer.



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