SCOTUS Stays End of Title 42

Allegations of federal government collusion and warnings of disaster

By Andrew R. Arthur on December 20, 2022

Chief Justice John Roberts has temporarily delayed the end of Title 42.

On December 19, he issued a brief order, staying an order issued on November 15 by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia. Judge Sullivan’s order vacated and enjoined CDC orders, issued pursuant to Title 42 of the U.S. Code, directing the expulsion of aliens who had entered the United States illegally. For the moment, at least, Title 42 lives, but the Court will have to weigh allegations of federal government collusion and warnings of disaster in deciding how long that will be the case.

Title 42 in Brief The first CDC Title 42 order was issued during the Trump administration on March 20, 2020, when the global pandemic was declared, but CDC has reissued those orders several times thereafter (with amendments and modifications), well into the Biden administration.

Although those Title 42 CDC expulsion orders are mandatory, DHS under the Biden administration has implemented them much less widely than it did under Trump.

More than 87 percent of illegal Southwest border migrants subject to Title 42 were expelled during the Trump administration, a figure that dropped to around 58 percent between February and September 2021 (the portion of FY 2021 under Biden). Expulsions further declined in FY 2022, as fewer than 48 percent of illegal migrants apprehended at the Southwest border last fiscal year were expelled under Title 42.

That decline continues. Of the more than 204,000 illegal entrants apprehended by Border Patrol at the Southwest border in October, fewer than 76,500 (37.4 percent) were expelled under Title 42.

Still, Title 42 plays an outsized role in border security, even though those public-health orders are not a “border policy”, per se.

That’s because the Biden administration quickly reversed nearly every Trump border policy that had allowed DHS to bring a modicum of operational security to the Southwest border. That, in turn, is why agents set new yearly apprehension records at the Southwest border in FY 2021 (nearly 1.66 million) and FY 2022 (more than 2.2 million), and a new monthly apprehension record in October.

Even those numbers hide the true scope of the humanitarian disaster at the Southwest border, because CBP’s statistics don’t include an estimated 389,000 alien “got-aways” who successfully evaded agents in FY 2021, or the additional 599,000 got-aways in FY 2022, or 64,000 others in October alone.

Those got-aways were able to evade apprehension because an estimated 90 percent of Border Patrol agents aren’t “on the line”; they are rounding up, transporting, processing, caring for, and (all too often) releasing illegal migrants who are gaming the system to enter and live in the United States.

Title 42 is a release valve (literally and metaphorically) that provides agents a quick process to send at least some illegal migrants back. When it’s gone, the true effects of Biden’s border fiasco will be felt, first at the border and soon thereafter in towns and cities across the United States.

Title 42 Litigation. While the Biden administration maintained those Trump-era Title 42 orders for more than a year, in April it announced that Title 42 would end on May 23.

That prompted a group of states that would be particularly affected by the end of Title 42 to file suit in federal court in Louisiana seeking to continue those CDC orders. On May 20, the federal district court judge in that case, Robert Summerhays enjoined CDC’s attempts to end Title 42.

Judge Summerhays found that the federal government had failed to comply with required Administrative Procedure Act (APA) notice-and-comment rulemaking before it terminated Title 42.

The Biden administration quickly appealed that order to the Fifth Circuit, but to date no decision has been issued on the government’s appeal.

In the interim, however, a separate Title 42 case, this one brought by migrants and advocates, was playing out in federal court in Washington, DC. That case, Huisha-Huisha v. Mayorkas, was originally filed in the waning days of the Trump administration, and on November 15, Judge Emmet Sullivan issued an opinion vacating and enjoining Title 42, effective December 21.

On November 21, 16 states that had successfully obtained the injunction from Judge Summerhays filed a Motion to Intervene in Huisha-Huisha, arguing that intervention was necessary because the administration would not defend their interests. Eight days later, DOJ filed an opposition to that motion to intervene.

Then, on December 7, the administration filed a notice that it would be appealing Judge Sullivan’s order to the U.S. Court of Appeals for the District of Columbia (without seeking a stay), prompting the state intervenors to file a motion asking Judge Sullivan to stay his order terminating Title 42 pending appeal on December 9 (which Judge Sullivan quickly denied).

The state intervenors then sought a stay of Judge Sullivan’s order from the D.C. Circuit, which denied that request on December 16, finding that the states had waited too long to intervene in the case.

Consequently, on December 19, the state intervenors filed 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.

Collusion to Bypass the APA. That application is quite the read, but to simplify, the states are accusing the administration of “employing ‘the tactic of rulemaking-by-collective-acquiescence’” in Huisha-Huisha.

Specifically, the states allege that the federal government is attempting to bypass the APA’s notice and comment requirements and Judge Summerhays’ order by “collusively agree[ing] with Plaintiffs to recreate the enjoined order [from Judge Summerhays] terminating the Title 42 System, with the same delayed effective date and same lack of notice-and-comment compliance as the enjoined rule”.

Nor do the state intervenors pull any punches in describing the stakes in this matter:

No one reasonably disputes that the failure to grant a stay will cause a crisis of unprecedented proportions at the border. DHS estimates that daily illegal crossings may more than double from around 7,000/day to 15,000/day once Title 42 is terminated.

DHS is further seeking $3-4 billion in emergency funding to attempt to handle this crisis that the Federal Government is so eagerly embracing. (Of course, the Administration has not made any equivalent request to reimburse the States for their resulting costs.) The Deputy Attorney General herself has expressed alarm, telling CBS News that she is “‘concerned about the increase in illegal immigration’ as well as ‘human smuggling’ and ‘drug smuggling’” that the termination of Title 42 will cause. Realization of any one of these feared harms could be sufficient to warrant certiorari. [Emphasis in original, internal citations omitted.]

Don’t Get Too Excited — Yet. As noted, Chief Justice Roberts granted a stay of Judge Sullivan’s order (but only a brief one pending further order from the Supreme Court), in which he directed the federal government to respond to the state intervenors’ application by 5:00 pm today, December 20.

I wouldn’t get too excited about the chief justice’s order — yet. Four justices will have to vote for certiorari in a case that has not actually been subject to any real review by the D.C. Circuit yet, and the Supreme Court likes a full record before it acts.

That said, there is a lot on the line in this one, both factually (the catastrophe that will ensue once Title 42 ends) and legally (the argument that the federal government is trying to bypass the APA by essentially and improperly tanking a separate case).

For the moment, however, the end of Title 42 on December 21 is like Schrödinger’s Cat, in limbo between life and death, awaiting the High Court’s opening of its box. I’m not a betting man as a rule, but if I were, there are two things I would never bet on: college basketball and Supreme Court opinions; the outcomes in each are just too uncertain.

Should the Court rule against the state intervenors, however, I am certain that chaos will follow. It’s a bad time of year for that because the current lame duck Congress wants to get out of town and won’t be likely to intervene before January at the earliest, at which point the damage will be incalculable.

Pity the poor Border Patrol agents who will be on call regardless of how the Court rules. They’re already overwhelmed by the feckless and senseless policies of a president who portrayed them as villains on the campaign trail, so it’s no wonder that their morale is at its nadir.

There’s no reason that the citizens of a free republic should be subject to the whims of a handful of White House bureaucrats and the deliberations of an unelected judiciary when it comes to a subject so crucial to our national security as the border. But here we are.