CDC orders directing the expulsion of illegal migrants, issued under Title 42 of the U.S. Code, were supposed to expire today, but as I noted in a recent post, Chief Justice John Roberts stayed Title 42’s demise on December 19 in response to an application filed by a group of states. The chief gave the Biden administration until 5:00 PM yesterday to respond to that application, and in its response, DOJ opposed extending Title 42 — while asking the Court to leave the say in place until one minute before midnight on December 27, or 11:59 PM two business days after it enters its order, whichever’s later.
Timeline. Don’t feel bad if this is confusing. I have been following Title 42 since Day 1, and it’s confusing to me, too. Here’s a brief timeline:
[D]espite defending this lawsuit since January of 2021, the Federal Defendants have shifted course and abandoned their defense of Title 42. In essence, Federal Defendants have circumvented APA notice-and-comment requirements by abandoning defense of Title 42 and instead agreeing with Plaintiffs on a December 21 end date.
Because invalidation of the Title 42 Orders will directly harm the States, they now seek to intervene to offer a defense of the Title 42 policy so that its validity can be resolved on the merits, rather than through strategic surrender. This motion is plainly timely because it comes within a week of the Federal Defendants’ volte-face — which made plain that the States’ interests are no longer adequately represented.
- January 31, 2020: President Trump announces a travel ban to and from China in response to the identification of a novel coronavirus (Covid-19) in that country.
- March 11, 2020: The World Health Organization declares a global Covid-19 pandemic.
- March 19, 2020: Canada and the United States close their mutual borders to all travel, except for commercial traffic and “essential” entries.
- March 20, 2020: CDC issues its first Title 42 order, applicable to illegal entrants crossing the Mexican and Canadian border and other inadmissible aliens.
- March 21, 2020: The United States and Mexico close the Southwest border to all crossings except for commercial and essential travel.
- April 20, 2020: CDC extends its Title 42 order.
- May 19, 2020: CDC extends its Title 42 order and amends it to apply to coastal borders.
- October 13, 2020: CDC extends its Title 42 order.
- November 18, 2020: Judge Emmet Sullivan of the U.S. District Court for the District of Columbia issues an order in P.J.E.S. v. Wolf, enjoining the expulsion of unaccompanied alien children (UACs) under Title 42.
- January 20, 2021: President Biden inaugurated.
- January 29, 2021: U.S. Court of Appeals for the District of Columbia (D.C. Circuit) stays Judge Sullivan’s injunction of Title 42 to UACs, in a case now captioned P.J.E.S. v. Pekoske.
- January 30, 2021: Border Patrol reportedly told to “stand down” on expelling UACs under Title 42.
- February 17, 2021: CDC issues a new Title 42 order excepting UACs from expulsion under Title 42.
- August 2, 2021: CDC extends its amended Title 42 order.
- September 16, 2021: Judge Sullivan, in a separate case (Huisha-Huisha v. Mayorkas) enjoins the expulsion of illegal entrant adults travelling with children in “family units” under Title 42.
- March 4, 2022: D.C. Circuit, in response to the government’s appeal of Judge Sullivan’s order in Huisha-Huisha, affirms DHS’s authority to expel illegal migrants under Title 42, but not to places where those aliens would be persecuted or tortured.
- April 1, 2022: Biden administration announces that Title 42 will end on May 23, 2022.
- April 3, 2022: States of Arizona, Louisiana, and Missouri file suit in the U.S. District Court for the Western District of Louisiana against CDC, alleging that its termination of Title 42 violates the Administrative Procedure Act (APA), in Louisiana v. CDC.
- May 20, 2022: The district court judge in Louisiana, Robert Summerhays, enjoins the termination of Title 42, finding that the CDC violated the APA by failing to consider the effect ending Title 42 would have on immigration enforcement and the now 24 plaintiff states in the case. Biden administration files its notice of appeal of that decision to the Fifth Circuit.
- November 15, 2022: Judge Sullivan, in Huisha-Huisha, vacates and enjoins Title 42. DOJ files an unopposed motion to stay that order “to prepare for the transition from Title 42 to Title 8 processing, given the need to resolve resource and logistical issues that it was unable to address in advance without knowing precisely when currently operative August 2021 Title 42 order would end”.
- November 16: Judge Sullivan grants DOJ’s motion “WITH GREAT RELUCTANCE”, staying his order from November 15 to December 20.
- November 20: State plaintiffs in Louisiana file a motion to intervene in Huisha-Huisha, alleging that:
[D]espite defending this lawsuit since January of 2021, the Federal Defendants have shifted course and abandoned their defense of Title 42. In essence, Federal Defendants have circumvented APA notice-and-comment requirements by abandoning defense of Title 42 and instead agreeing with Plaintiffs on a December 21 end date.
Because invalidation of the Title 42 Orders will directly harm the States, they now seek to intervene to offer a defense of the Title 42 policy so that its validity can be resolved on the merits, rather than through strategic surrender. This motion is plainly timely because it comes within a week of the Federal Defendants’ volte-face — which made plain that the States’ interests are no longer adequately represented.
- December 7: Biden administration files a notice to appeal in Huisha-Huisha but explains that it will ask the D.C. Circuit to hold that appeal in abeyance pending the Fifth Circuit’s decision in Louisiana.
- December 16: The D.C. Circuit denies the states’ motion to intervene, holding:
First, although this litigation has been pending for almost two years, the States never sought to intervene in the district court until almost a week after the district court granted plaintiffs’ partial summary judgment motion and vacated the federal government’s Title 42 policy. The filing was so late in the litigation process that the federal government’s filing of a notice of appeal shortly thereafter, in the States’ view, deprived the district court of jurisdiction even to act on the motion.
...
Second, long before now, the States have known that their interests in the defense and perpetuation of the Title 42 policy had already diverged or likely would diverge from those of the federal government’s should the policy be struck down.
- December 19: The states seeking to intervene in Huisha-Huisha file an emergency application for a stay pending certiorari (Supreme Court review) of Judge Sullivan’s order with Chief Justice Roberts, in his role as the circuit justice for the D.C. Circuit. They allege the Biden administration is colluding with the plaintiffs in Huisha-Huisha “to recreate the enjoined order [from Judge Summerhays in Louisiana] terminating the Title 42 System, with the same delayed effective date and same lack of notice-and-comment compliance as the enjoined rule”.
- December 19: Chief Justice Roberts issues an order staying Judge Sullivan’s November 15 order and directs the Biden administration to respond by 5:00 PM on December 20.
- December 20: DOJ files its opposition with the Supreme Court, denying collusion while “recogniz[ing] that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings”. In addition, it:
[R]espectfully requests that, if the Court denies the application before December 23, it leave the current administrative stay in place until 11:59 p.m. on December 27. If the Court denies the application on or after December 23, the government respectfully requests that it preserve the administrative stay until 11:59 p.m. on the second business day following its order.
No Way to Run an Immigration Policy. In that vein, “respectfully”, this is no way to run an immigration policy, but a “Christmas truce” will likely bring some relief to the Border Patrol agents at the Southwest border.
None of this — none — would have been necessary had the Biden administration not eliminated — or not been so quick to eliminate — the Trump-era policies that had brought a modicum of operational control to the Southwest border.
Biden knew that would result in disaster, promising a month before he took office that, while he would reverse those Trump policies that he would only do so “at a slower pace than he initially promised, to avoid winding up with '2 million people on our border”, and only after “’setting up the guardrails” to find a solution to the immigration issue”.
That never happened, and Biden actually oversaw more than two million illegal entries at the Southwest border in FY 2022, as Border Patrol apprehensions exceeded 2.2 million even as nearly 600,000 others evaded apprehension and entered illegally.
A Disgrace. All three branches of government are now playing a role in the humanitarian disaster at the Southwest border, as Congress considers a massive spending bill that provides no new funding for migrant detention — which, as I explained recently, is key to resolving the border. The fact that border security hinges on the only branch that is unelected is a disgrace.