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U.S. Supreme Court will wait until 2023 to hear arguments on border restrictions


The Supreme Court will wait until next year to hear arguments on the border restrictions known as Title 42. But a group of 19 state attorneys general, all Republicans, scored a victory this week after the justices left in place, at least temporarily, the constraints that the Trump administration implemented as a public health order. Since March of 2020, Title 42 has let U.S. border agents turn away migrants as soon as they cross the southern border on the basis of warding off COVID-19. Arizona is one of the states challenging the end of Title 42. Arizona's attorney general is Mark Brnovich.

MARK BRNOVICH: Our reasoning is a legal reasoning that essentially says that if Joe Biden wants to rescind Title 42, he has to do it in a lawful and constitutional manner. And what he did was not consistent with the law. And then we, as the states, tried to intervene to protect our interest. And the Biden administration disagreed, saying the states didn't have an interest. And I think the events of the last two years, whether it's on a cost in health care, whether it's the cost of incarceration or whether it's the cost in lost lives, every state in the United States now is a border state, and we all have an interest in making sure we have a secure border.

MARTÍNEZ: So you just don't like the way he went about it?

BRNOVICH: Look, I think Title 42 was, you know, not designed to be a permanent fix or a permanent solution to what's going on in our border. But the reality is that the Biden administration and Secretary Mayorkas have systematically incentivized and decriminalized people breaking the law. And as a result of that, we have seen a historic and record amount of people illegally enter our country.

MARTÍNEZ: Title 8 actually allows for some prosecution. It allows for legal action...

BRNOVICH: Yeah. Right.

MARTÍNEZ: ...Fines, felonies, maybe even, with multiple crossings. So what's wrong with allowing the Biden administration to go back to what we've always had, which is Title 8?

BRNOVICH: The reality is that from day one, when Joe Biden was being sworn in, he started to decriminalize and incentivize people coming into the country illegally. So, I mean, if you remember, there was the interim guidance, where the Biden administration was refusing to deport people with deportation orders, where we had to file a lawsuit. He stopped building the wall, where taxpayers are having to pay for a wall that wasn't being built - the Remain in Mexico policy. The list goes on and on.

MARTÍNEZ: If they process an immigrant through Title 8, they can prosecute. But if most of them are done through Title 42, there are no legal avenues.

BRNOVICH: That is part of the problem. The Biden administration is not prosecuting people for illegal entry and reentry into our country. They are literally letting people make asylum claims, and then they're releasing them into our country. And sometimes, you know, they're being told to report to probation offices years down the road. What is going on right now is chaos.

MARTÍNEZ: From your perspective on this lawsuit, specific to Title 42, how that would help this, as you call it, chaos, how it would all of a sudden control this chaos, because the recidivism on Title 42 - you've got migrants that are coming back one, two, three, four, five times that might not have that same ability if they actually were under Title 8.

BRNOVICH: Because what we know right now is the system is not working, and if you talk to anyone in Border Patrol, the ranchers and farmers in Arizona, people that prosecute gang cases or people at the DEA that are prosecuting - going after the cartels, they will tell you the Title 42 is not the end all, be all. It's not a permanent policy. It was never meant to be. But it is one of the few tools we have left in our toolbox that is stopping even more people from illegally reentering or illegally entering our country.

And, look, when President Obama was president, you know, they did, you know, Operation Chokehold. They aggressively sent judges and federal prosecutors to our southern border to aggressively prosecute entry and reentry cases. And even during the Obama administration, they were able to stem the flow of immigration. So I'm not saying that this is some magic wand or solution. But until the Biden administration gets serious about securing our border, until they get serious about going after the cartels, prosecuting people for, you know, illegal reentry, we're going to continue to have this problem.

MARTÍNEZ: But your argument right off the top was you were more concerned over the way President Biden tried to lift Title 42 more than, actually, Title 42 being lifted. So is your justification for the lawsuit - for being part of the lawsuit that you don't agree with the way President Biden tried to lift Title 42 or that Title 42 should not be lifted?

BRNOVICH: What I have said consistently is I believe in our institutions as a first-generation American. I believe in the process. And if the president wants to rescind Title 42, he has to go through the lawful process, which includes notice and comments by affected parties. So the first fundamental question is, has the president of United States followed the legal process? And we say no.


BRNOVICH: You know, just this week, the Biden administration's talking about making sure people from some countries have negative COVID test. I mean, it's - I think it's the height of absurdity where, you know, there's kids being expelled or not allowed to go to school 'cause they won't wear a mask because of COVID concerns.

MARTÍNEZ: Do you still think there's a pandemic going on, or do you think that is over?

BRNOVICH: What I think is that there are concerns that people have expressed, including the president of the United States, regarding the pandemic and COVID-19. I don't always agree with all of his solutions as a matter of policy. But what I was trying to point out is - from a legal perspective - is that the president and his administration is taking actions, saying there's a pandemic, and they're literally taking actions to try to mitigate and control it. Then, my goodness, one of the things they should absolutely be doing is keeping Title 42 in place.

MARTÍNEZ: So let me ask you this then. How do we fix the system? What do we do?

BRNOVICH: The very first thing you have to do is aggressively enforce existing law. You have to gain control of the southern border. And then once you do that, you can start having a discussion. This is not, like, rocket scientist in the sense that there are countries like Canada and Australia that have immigration systems that are based on merits and points. But it has to begin with enforcing existing law.

And - what? - I'm out here on the - you know, in Arizona, and it just seems like in Washington, D.C., because we don't have term limits, and we don't have balanced budget amendments, there's there is a permanent political class there - elected political class, too - that has an incentive and motive in just perpetuating these issues and continuing to divide our country. I guess in a lot of ways I am a subjective optimist but an objective pessimist because I just think that the last 20 years, 25 years has shown that the people elected in Washington - Republicans, Democrats - a pox on them all. They don't get anything done.

MARTÍNEZ: Arizona Attorney General Mark Brnovich. Thank you very much.

BRNOVICH: Thank you very much. Transcript provided by NPR, Copyright NPR.