The End of Title 42

Congress and the administration face “a time for choosing” between anarchy and order at the Southwest border

By Andrew R. Arthur on November 16, 2022

I explained in my last post that on November 15, federal Judge Emmet Sullivan blocked enforcement of CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic directing the expulsion of illegal entrants. Since then, the administration has requested a brief stay of that order to “allow the government to prepare for an orderly transition to new policies at the border”. That stay was unopposed by the plaintiffs in the case and granted by the judge, meaning Title 42 will end on December 21. The court’s order presents Congress and the administration with a time for choosing between anarchy and order at the Southwest border — which should not be a hard choice.

Procedural History of the Case. The plaintiffs in the case, Huisha-Huisha v. Mayorkas, are “a group of asylum-seeking families who fled to the United States”. They challenged the CDC Title 42 expulsion orders in the U.S. District Court for the District of Columbia on the grounds that Title 42 did not allow for deportations and that they “would face grave harms if they were expelled without being allowed to apply for humanitarian relief”.

That case was assigned to Judge Sullivan, and in September 2021, he issued a preliminary injunction that prevented DHS from expelling families who were seeking asylum from expulsion under Title 42.

Shortly thereafter, the administration sought and received a stay of that order from the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) pending appeal. In March, the D.C. Circuit affirmed Judge Sullivan in part, holding that the government could expel illegal entrants, “but only to places where they will not be persecuted or tortured”.

That put the case back before Judge Sullivan, but one month after the D.C. Circuit issued its decision, on April 6, CDC published a notice in the Federal Register that it would terminate Title 42, effective on May 23.

That termination had been informally announced prior to the publication of that notice, prompting a group of state plaintiffs to file a complaint with the U.S. District Court for the Western District of Louisiana on April 3, asking for a preliminary injunction of the administration’s revocation of the CDC’s Title 42 order.

In response to that complaint, on May 20 — three days before Title 42 was set to end – Judge Robert R. Summerhays of the U.S. District Court for the Western District of Louisiana issued a preliminary injunction blocking the Biden administration’s termination of Title 42.

Note, however, that Judge Summerhays’s order had no effect on the claims pending before Judge Sullivan in Huisha-Huisha.

The Court’s Order, In Brief. The plaintiffs in the D.C. case argued that the Title 42 orders were “arbitrary and capricious” in violation of the Administrative Procedure Act (APA) on the grounds that: (1) CDC failed to apply the “least restrictive means” standard when it created the policy; (2) the CDC’s policy failed to rationally serve its stated purpose, considering the alternatives; and (3) “CDC failed to consider the harm” Title 42 “would inflict on impacted individuals”.

Judge Sullivan concurred with these arguments, and vacated the CDC Title 42 policy and permanently enjoined the government from applying that policy to the class of migrant families.

Critically, Judge Sullivan’s order is more sweeping than Judge Summerhays’s: The latter simply prevented the Biden administration from revoking the CDC’s Title 42 orders, while the former vacates those orders in their entirety.

What Comes Next. Not surprisingly, Judge Sullivan’s order has created quite a stir among those who care about national security and sovereignty, because it takes a bad situation at the border and makes it exponentially worse. Here’s why.

Joe Biden had vowed on the 2020 campaign trail that he would reverse most of Donald Trump’s border policies, but just before taking office, in December 2020, he explained that he would do so “at a slower pace than he initially promised, to avoid winding up with '2 million people on our border’”, and only after “guardrails” were in place to avoid chaos.

That didn’t happen. Instead, Biden quickly began rolling back the Trump policies that had enabled DHS to establish a modicum of operational control at the Southwest border – most notably the Migrant Protection Protocols (MPP), better known as “Remain in Mexico” — without implementing any “speed bumps”, let alone guardrails, to illegal entry.

In fact, in a break from every prior administration, the current one ditched any pretense of deterring foreign nationals from entering the United States as a border policy. Instead, as DHS Secretary Alejandro Mayorkas explained on May 1, the administration’s border objective is “to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system”.

That means allowing every alien who can make it to the United States illegally to apply for asylum, regardless of the strength or validity of their claims or even if they come seeking asylum at all.

The only quasi-border policy of the Trump administration that Biden kept in place was Title 42. But as noted, the administration tried to end even that in the late spring, even though DHS warned that up to 18,000 aliens will seek to enter illegally per day over the Southwest border once Title 42 ends — a 173 percent increase over October’s already dismal Border Patrol apprehension numbers.

Why is the Biden administration so insistent on ending Title 42 despite the disaster that will ensue? Because, when aliens are expelled pursuant to those CDC orders, they can’t apply for asylum — or rather can’t apply for asylum in the United States, at least.

And, again, allowing every illegal entrant to apply for asylum is the White House’s main objective at the Southwest border.

For what it’s worth, however, there is a clear tension within the Immigration and Nationality Act (INA) between section 235 of that act — which directs the expedited removal of illegal entrants — and section 208, the asylum provision therein.

Section 235 of the INA responds to that tension by directing DHS to send illegal migrants subject to expedited removal who request asylum or assert a fear of harm if removed to USCIS asylum officers to determine whether they have a “credible fear”. Credible fear is essentially a screening standard to determine whether the alien may be eligible for an asylum grant at the end of the day.

As with many INA requirements, however, the Biden administration has largely ignored that expedited removal/credible fear process. Of the 2.2 million-plus illegal entrants apprehended by Border Patrol at the Southwest border in FY 2022, fewer than 111,000 — just over five percent — were placed into expedited removal. Most of the rest who weren’t expelled under Title 42 were simply released.

 A Time for Choosing. Skipping expedited removal in lieu of release may have been fine for a few months as an emergency measure, but we are now more than 21 months into the Biden border emergency. It’s well past time for either a policy reset by the administration or congressional action.

Judge Sullivan’s order has turned up the heat on either a policy shift or Congress acting.

If DHS is correct in its post-Title 42 assessments, more than a half million new entrants will soon show up monthly, well beyond a level Border Patrol’s limited resources can handle. Drugs will flow across an undefended border, towns and cities across the country will struggle to deal with new arrivals, and the opportunities for terrorist exploitation of that border will be too rich for our nation’s foes to pass up.

In October 1964, then-actor Ronald Reagan gave a speech on behalf of Sen. Barry Goldwater (R-Ariz.), the GOP candidate for president that year, captioned “A Time for Choosing”. That speech set forth different visions of the nation’s future.

Thanks to Judge Emmet Sullivan’s order vacating Title 42, Congress and the administration face a new “time for choosing”, this one on the direction of events at the Southwest border. The choices are between anarchy on the one hand and order on the other. It should not be a tough choice, but then again neither body should have let it come to this.