"Under the Title 42 Order, these non-citizens can be quickly screened and then expelled quickly, significantly reducing the risk of transfer," Justice Department Attorney Sharon Swingle told a panel of three judges.
Wednesday's trials stemmed from a lawsuit filed in January last year in which the American Civil Liberties Union and others challenged the Trump-era border policy on behalf of migrant families. The ACLU had also challenged exposing unaccompanied children to politics, even though they are now exempt.
"We are back in court because the Biden administration has chosen to continue this brutal policy against families, despite the absence of support from public health officials," said ACLU's Lee Gelernt, lead lawyer in the trial.
Judges at times seemed skeptical about the basis of the order, especially the premise that it protects against transmission in assembly environments, or specifically in the case of the US-Mexico border, border facilities. Judge Sri Srinivasan noted, for example, that unaccompanied minors who are exempt from the order are not subject to it and pass through the same facilities.
Judge Robert Wilkins, meanwhile, said he would "tend to be very sympathetic" to the U.S. government, but stressed the unprecedented nature of the order.
"I would be inclined to be very sympathetic to your position, but we have Supreme Court authority saying that when you know an agency is taking you by, unprecedented, you know, action or to exercise an unprecedented power , that we should look askance at it, "he said.
Plaintiffs in the case had been in negotiations with the government for several months, and as part of the lawsuit, the ACLU referred some families to be admitted to the United States.
However, these negotiations fell apart when the Biden administration decided to keep the public health order in place, angering immigrant advocates claiming it should be dropped.
"These meeting frequencies have strained DHS operations and caused border facilities to be filled beyond their normal operating capacity, affecting the possibility of using social distancing in these assembly environments. At the same time, DHS is also experiencing significantly increased rates of non-citizen testing positive for COVID19 , "read the statement from August, arguing that the risk had increased due to the highly transmissible Delta variant of coronavirus.
The administration remains dependent on the authority. And on the question of it, the White House has referred to the US Centers for Disease Control and Prevention, which, according to a spokesman, considers it necessary given the Delta and Omicron variants.
But Judge Justin Walker argued that despite the evolving state of the pandemic, there are several precautions that can be taken. "This is not March 2020. We have widely available effective vaccines. We also have a wide range of tests that were not so widely available, and or even treatments," Walker said.
Gelernt leaned into a similar argument, saying the government has not done enough to equip border facilities to receive migrants instead of expelling them.
Swingle argued that the government is trying to get back on track but cannot rely on vaccines to prevent the transmission of Covid-19.
"Vaccines are more accessible, but vaccinating someone at a meeting does nothing to reduce the risk of that person spreading Covid in an assembly setting, in the days following a vaccination where the vaccine has not yet become effective," Swingle said.
"Today we heard the same unconvincing arguments from the Biden administration that we have heard over the last year about this xenophobic and unfounded policy, arguments that have already been rejected in federal court. Section 42 inflicts unfair and unnecessary harm on families, seeking asylum at our border and we will continue to work tirelessly to ensure that this policy ends once and for all, "said Diana Kearney, senior legal adviser at Oxfam America, in a statement.