Federal Judge Blocks Termination of Title 42

Biden administration will appeal, but will also comply

By Andrew R. Arthur on May 23, 2022

On Friday, May 20, 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 attempt to end CDC orders issued under Title 42 of the U.S. Code in response to the Covid-19 pandemic, which have directed the expulsion of illegal migrants since late March 2020. Unsurprisingly, the White House disagrees with the injunction (and DOJ has vowed to appeal it), but the president will comply with the court’s order.

Title 42. As noted, CDC issued its first Title 42 order shortly after the pandemic was declared in late March 2020. It is a public-health and not a “border” policy per se, but of the nearly 518,500 aliens encountered at the Southwest border by DHS under the Trump administration between April 2020 and January 2021, nearly 459,600 (88.6 percent) were expelled under Title 42.

That changed, however, after Biden took office. The new administration exempted unaccompanied alien children (UACs) from the scope of Title 42 — an exception that was itself briefly enjoined before CDC issued a new order expressly excepting UACs. In addition, Mexico increasingly refused to accept the return of expelled alien migrants travelling with children in “family units”, and Biden never tried to force them to do so.

Consequently, of the nearly 2.6 million illegal migrants Border Patrol has apprehended at the Southwest border since February 2021, fewer than 55 percent (approximately 1.425 million) have been expelled under Title 42. The use of Title 42 has decreased even further of late, with just 47 percent of aliens apprehended by Border Patrol at the U.S.-Mexico line in April being expelled.

That is not to say, however, that Title 42 is not still essential to ensuring that the disaster at the Southwest border does not dissolve into even greater chaos. Agents can process an alien for expulsion under Title 42 in about 40 minutes, while processing those aliens for removal proceedings under the Immigration and Nationality Act (INA) can take eight hours or more.

Every minute spent processing is a minute agents are not out actually patrolling the border to ensure that drugs, other contraband, and migrants (including possible terrorists) are able to enter the United States. Faster is better from a national security and law enforcement perspective than slower, and as the Biden administration has no policy to deter illegal migrants, Title 42 is indispensable.

The Order. Judge Summerhays’ order runs 47 pages (with 248 footnotes), but briefly the court found that the CDC had violated the Administrative Procedure Act (APA) by failing to consider the effect ending Title 42 would have on immigration enforcement and the 24 plaintiff states (three — Arizona, Louisiana, and Missouri — had filed the initial complaint).

With respect to immigration enforcement, the court found that CDC’s termination of Title 42 “will result in increased border crossings and that, based on the government's estimates, the increase may be as high as three-fold” — to nearly 18,000 per day.

In paragraphs 45 to 68, the court recounted the (unverified) costs that each plaintiff state bears due to illegal immigration already — from $4.7 billion in Florida to $26.1 million in Wyoming, though Texas and Ohio did not provide a precise dollar figure.

Judge Summerhays concluded that CDC’s termination of Title 42 “is likely to result in a significant increase in border crossings, that this increase will impact their healthcare systems, and that they will incur higher costs for healthcare reimbursements”.

Accordingly, he held, CDC should have submitted the termination of Title 42 for notice and comment before acting, and because it did not, transgressed the rulemaking requirements of the APA.

The court deferred, however, on determining whether CDC had acted “arbitrarily and capriciously” in violation of the APA by failing to consider the impacts on immigration enforcement and the states’ reliance on the continuation of Title 42.

Judge Summerhays explained how the two APA arguments were linked in this matter, explaining that the problem with the states’ reliance argument is “CDC did not have the benefit of additional information and input with respect to the reliance interests claimed by Plaintiff States because it did not promulgate the Termination Notice through the APA's required notice-and-comment process”.

The court also found that the CDC failed to consider any alternatives to a “blanket” termination order, with the judge relying on the Fifth Circuit’s analysis in Texas v. Biden, the “Remain in Mexico” case that is currently pending before the Supreme Court. As Judge Summerhays found:

Title 42 does not cabin the CDC's options under the statute to a binary decision to either keep or terminate its Title 42 COVID-related orders. Consideration of the alternatives may ultimately lead the CDC to determine that a termination of its Title 42 orders is the correct course. However, the CDC must, consistent with Texas v. Biden, consider the alternatives.

Concluding that the plaintiff states had “established a substantial likelihood of success based on the CDC's failure to comply with the rulemaking requirements of the APA”, that they would suffer “irreparable harm” if an injunction were not issued, that the “balance of harms” favored the states, and that an injunction would “serve the public interest”, the court enjoined CDC’s termination of Title 42.

The White House Response — Public and Private. The White House quickly issued a statement asserting that it disagreed with the court’s order, and that Biden’s DOJ would appeal the decision, but that it would nonetheless “continue to enforce the CDC’s 2020 Title 42 public health authority pending the appeal”. That means “migrants who attempt to enter the United States unlawfully will be subject to expulsion under Title 42, as well as immigration consequences such as removal under” the INA. In other words, the status quo.

Even though the White House publicly complained about Judge Summerhays’ injunction, multiple outlets have reported that not everyone in 1600 Pennsylvania Avenue is clamoring for the end of Title 42.

The New York Times, quoting one “expert” from the University of California, San Diego, explains: “The Biden administration is probably breathing a sigh of relief because they weren’t ready for the rule to be lifted”. That is an understatement.

While DHS Secretary Alejandro Mayorkas released a plan to deal with the migrant tsunami that would follow in the wake of the end of Title 42, my colleague Jon Feere described that plan as “unserious”, and explained it “is largely made up of narratives and excuses and will do little to change the humanitarian disaster that has resulted from the Biden administration’s dismantling of immigration enforcement”.

That’s the practical part. Here is the political: A recent CNN poll released on May 4 showed that 62 percent of respondents believe that the federal government is doing “too little” to enforce the immigration laws, compared to just over a quarter (26 percent) who think it is doing “the right amount”, and a measly 12 percent who conclude DHS is doing “too much”.

That poll further determined that two-thirds of respondents (66 percent) disapprove of how Joe Biden is handling immigration, compared to 34 percent who approve. Those numbers mirror respondents’ thoughts on Biden’s handling of the economy — not exactly a bright spot for the administration or the prospects of the president’s fellow Democrats in the November mid-term elections.

If up to 18,000 illegal migrants per day did show up at the Southwest border post-Title 42, voters would sour even more on the president’s immigration enforcement efforts, likely sinking any prospects Democrats have for maintaining control of the House and Senate.

If the GOP takes control of Congress in 2023, it likely won’t be able to change the substantive immigration laws, but it can use the “power of the purse” to adjust DHS’s current non-enforcement policies. Even pro-illegal-immigration White House staffers, therefore, are likely fine with continuing the status quo on Title 42, their protestations notwithstanding.

Thanks to Judge Summerhays’ order, Title 42 will continue for now pending appeal. While it is providing diminishing returns in terms of border enforcement, Title 42 is the only Biden administration policy that is discouraging illegal entrants and slowing the tide at the border. Given that, and despite claims to the contrary, many in Washington are likely secretly breathing a sigh of relief.