McCarthy says Biden admin 'scrambling' on Title 42 after it asks judge to rule on lawsuit within days

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DHS braces for migrant surge after Title 42 is lifted

Fox News contributor Tom Homan on the migrant surge.

FIRST ON FOX: House Republican Leader Kevin McCarthy on Wednesday said the Biden administration is "scrambling" ahead of its planned lifting next week of the Title 42 public health order, after the Biden administration asked a federal judge to rule by Friday on a lawsuit challenging the move.

"The Biden administration is scrambling five days before their own deadline to end Title 42 because President Biden’s open border policies have created, in the words of Homeland Security Secretary Alejandro Mayorkas, an ‘unsustainable’ crisis for our country," McCarthy said in a statement to Fox News Digital.

FEDERAL JUDGE EXPECTED TO RULE ON TITLE 42 LAWSUIT WITHIN DAYS AS BORDER CRISIS ROLLS ON

The Biden administration is planning on lifting the order, which has been used to expel a majority of migrants at the southern border since March 2020, on Monday. But it is being challenged by a coalition of Republican states, who say the move is unlawful and are seeking a preliminary injunction.

Dec. 3, 2021: House Minority Leader Kevin McCarthy, R-Calif., responds to reporters at the Capitol in Washington. (AP Photo/J. Scott Applewhite)

McCarthy was reacting to a request by the Biden administration to a federal judge that asked him to make a decision on the lawsuit by Friday because it would "help to avoid uncertainty that could pose operational challenges."

"Defendants respectfully request that, if possible, the Court endeavor to issue a decision by that date," the legal team says in the notice.

FEDERAL JUDGE EXTENDS ORDER BLOCKING BIDEN ADMIN FROM ROLLING BACK TITLE 42 AHEAD OF HEARING

Judge Robert Summerhays, a Trump nominee, had earlier granted a temporary restraining order blocking the administration from transitioning away from Title 42 before that date.

McCarthy told Fox that the administration "doesn’t have to wait for a court ruling to reverse course and secure the border today by fulling enforcing our immigration laws and fully enforcing Title 42." 

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"Doing otherwise is simply inviting more lawlessness and perpetuating the border crisis, which just saw the worst month on record for illegal border encounters," he said.

The move to end Title 42 sparked pushback from moderate Democrats as well as Republicans, who have cautioned that it will lead to even higher border numbers and more people being released into the U.S. There were more than 234,000 migrant encounters in April, and the Biden administration has said it is preparing for up to 18,000 encounters a day when the order lifts.

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However, DHS has also said that it believes that over time it will reduce the numbers encountered at the border when it re-implements criminal penalties for repeat border crossings. It has also stressed that it has a plan to deal with the lifting of the order -- which includes surging resources to the border, reintroducing criminal penalties for repeat crossings and a greater use of expedited removal. 

It has not yet satisfied those moderate Democrats, however, who had joined Republicans in signing onto legislation preventing the administration from lifting the order until 60 days after the CDC says the national emergency on COVID-19 is over. That legislation has not yet been voted on.