Federal Judge Enjoins Title 42 UAC Exception

And gets a little peevish at both Congress and the administration

By Andrew R. Arthur on March 8, 2022

On March 4, Judge Mark Pittman of the U.S. District Court for the Northern District of Texas issued an order blocking an exception for unaccompanied alien children (UACs) in the CDC’s most recent Title 42 orders, issued in response to the Covid-19 pandemic and directing the expulsion of illegal migrants. The order itself is not as exceptional as the court’s peevishness at both Congress and the administration.

Background on Title 42. I have written numerous times about the various Title 42 orders CDC has issued since the outset of the Covid-19 pandemic in late March 2020, most extensively in an August post. Briefly, however, Title 42 allows the CDC to prohibit the entry of persons into the United States to avert the introduction of any communicable disease into the country.

On October 13, 2020, CDC issued an order under Title 42 of the U.S. Code “suspending the right to introduce certain persons into the United States from countries where a quarantinable communicable disease [Covid-19] exists”.

That order was substantially the same as others CDC had issued as far back as March 2020, allowing DHS to quickly expel aliens who have entered the United States illegally or sought admission without proper documents.

UAC Injunction and the Onset of the Biden Administration. In November 2020, the U.S. District Court for the District of Columbia issued an injunction in which it held that UACs were being improperly expelled under Title 42. That injunction was stayed, however by the U.S. Court of Appeals for the District of Columbia on January 29, 2021, nine days after President Biden’s inauguration.

Evidence before Judge Pittman revealed, however, that the then-chief of the Border Patrol “was instructed to stand down from re-instating the Title 42 program for UAC the day after the stay preventing that reinstatement was lifted”, January 30.

Then, on February 17, 2020 — 18 days after the Border Patrol chief received that order — CDC published a notice stating it had “decided to exercise its discretion to temporarily except from expulsion [UACs] encountered in the United States pending the outcome of its forthcoming public health reassessment of the Order”.

The number of UACs encountered by CBP at the Southwest border thereafter skyrocketed, more than doubling in March 2021 to 18,870 from 9,402 the month before.

Prior to March 2021, Border Patrol monthly apprehensions of UACs at the Southwest border had exceeded 11,000 just once, in May 2019 (11,475). Between March and September 2021, they topped 14,000 every month, setting a new monthly record in July (18,945). UAC apprehensions only fell below 11,000 thereafter in January 2022 (8,777).

On April 29, 2021, the state of Texas filed suit in this matter. Seeking an injunction, it argued that the February 2021 notice violated the Administrative Procedure Act (APA) and that the Biden administration was failing to enforce the Immigration and Nationality Act (INA).

Thereafter, in July, CDC issued an order excepting UACs from its October 2020 Title 42 order, followed by a brand new Title 42 order in August. In that August order, it explained “the flow of migration directly impacts not only border communities and regions, but also destination communities and the healthcare resources of both”, but again excepted UACs.

Texas then filed an amended complaint to include the July and August CDC orders.

In the July and August orders, CDC explained that it had decided to except UACs because, as Judge Pittman explained it, “there are better measures to prevent UAC from spreading COVID-19 to each other”. (Emphasis in original.)

The court noted, however, that: “Nothing in the orders ... attempts to explain how preventing the spread of COVID-19 between UAC can also prevent the spread of COVID-19 from the interior of the United States.” (Emphasis in original.) The judge continued:

Importantly, this decision is completely contrary to the October ... Order’s purpose: “[T]o mitigate the continued risks of COVID-19 transmission and spread of COVID-19 to CBP personnel, U.S. citizens, lawful permanent residents, and other persons in the [ports of entry] and Border patrol stations,” as well as “further transmission and spread of COVID-19 in the interior of the United States.”

Accordingly, the court held that the government had departed from its prior policies without explaining why it had done so, an arbitrary or capricious action in violation of the APA.

Judge Pittman further held that the government had failed to consider Texas’s potential reliance interests in its July order, a flaw that it failed to correct in its August Title 42 order, again likely in violation of the APA.

Accordingly, the court enjoined the UAC exception in the July and August CDC orders.

Judge Pittman Gets Peevish. Injunctions of various Biden administration immigration policies by federal courts in Texas are not exactly novel, but the court’s take on them in this instance was.

From the outset, Judge Pittman got a little peevish, questioning why the administration and the state of Texas could not have resolved these issues without having to come to court.

He conceded that he was “not blind to the current political division in this country. Or that the division often implicates matters of federalism.”

Rather reasonably, though, he asserted that “there should be no disagreement that the current immigration policies should be focused on stopping the spread of COVID-19.” Modestly (or jejunely) he then admitted: “Why a state and the federal government are litigating this issue — instead of working to solve it — is simply beyond the comprehension of the undersigned.”

It is not entirely clear from this statement whether Judge Pittman is blaming the administration or Texas (or both) for this predicament, but it would appear that his target is the former. An administration cannot simply change policies properly adopted by its predecessor (like Title 42 coverage of UACs) without at least explaining why that change was made.

Nothing suggests that the president or any of his subordinates consulted Texas or any other border state before they excepted UACs from Title 42’s scope, and in fact, the evidence suggests that decision was made at least two weeks before CDC publicly announced it.

Congress did not escape Judge Pittman’s pique, nor the administration his pity, either.

He opined that the legislative branch no longer legislates in a way that makes it politically accountable, but instead has largely punted to “individuals within the administrative state with no political accountability. And because these administrative decisions are housed in the Executive Branch, all roads — for better or worse — lead back to the President of the United States.”

Thus, he concluded:

Here, the President has (arbitrarily) excepted COVID-19 positive unaccompanied alien children from Title 42 procedures — which were purposed with preventing the spread of COVID-19. As a result, border states such as Texas now uniquely bear the brunt of the ramifications. [Emphasis in original.]

The Court Gives the Government Time to Seek Review. Judge Pittman stayed his order for seven days to allow the government to seek a stay, which it is likely to do. The Biden administration, however, has not had much luck when it comes to the Fifth Circuit on border issues of late. This may be yet another case on what critics have (erroneously) derided as the Supreme Court’s “shadow docket”.

By March 11, we may know whether DHS is required to apply CDC’s Title 42 expulsion orders to UACs — or maybe we won’t. What is clear, however, is that courts are running out of patience with the Biden administration’s border policies. Judging from the polls, they aren’t the only ones.