President Joe Biden’s decision to lift the public health emergency for Covid-19 on May 11, ending free tests and treatment for millions of Americans, may also mean the end for a controversial border policy that has been tied up in the nation’s highest court.
A White House official told NBC News on Tuesday that if the courts allow it, the Biden administration plans to roll back the Covid ban known as Title 42 on May 11. That means the end of the policy could come before the Supreme Court has ruled on a suit by Republican-led states seeking to keep it in place.
Since the Centers for Disease Control and Prevention first invoked the Title 42 Covid ban during the Trump administration in March 2020, border agents have used it to deny migrants the right to enter the U.S. to claim asylum more than 2.3 million times.
Policymakers of both parties as well as Department of Homeland Security officials have widely predicted a large increase in the number of migrants crossing the border when the policy lifts, adding to the already record high of border encounters seen in the past year.
The Title 42 policy, as written, states that it may be lifted when the “public health emergency” is officially over or “the CDC Director determines that the danger of further introduction of Covid-19 into the United States has declined such that continuation of the order is no longer necessary to protect public health.”
The Biden administration previously tried lifting Title 42 via such a CDC order, which led to the lawsuit from Republican states, but will now be ending the policy by letting the public health emergency declaration expire on May 11.
A legal expert close to the case said that the Republican states might see that as an opportunity to sue again, arguing that this second path for lifting Title 42 also violates their rights. The expert said oral arguments before the Supreme Court in the first suit are still slated for March 1 and could have an impact on whether states try to block the administration’s latest push to lift the policy.
A Justice Department spokesperson did not comment on whether the Biden administration would change its legal position in the lawsuit now before the court based on the plans to lift the public health emergency.
To complicate matters, House Republicans voted Wednesday night to lift the public health emergency for Covid immediately rather than waiting until May 11.
The vote was a Catch-22 for Republicans, who want public health restrictions to end inside the U.S. while keeping restrictions on migrants at the border.
If the bill were to pass the Senate, which is unlikely, it would have the unintended effect of making it possible for the Biden administration to end Title 42 even sooner.