The Biden Administration’s Disingenuous ‘Appeal’ of Title 42’s Termination

By George Fishman on December 12, 2022

President Biden’s Department of Justice has told Judge Emmet Sullivan of the Federal District Court for the District of Columbia Circuit that it would appeal his order “terminating” Title 42. More precisely, on November 15:

[Judge Sullivan issued an order] vacat[ing] and set[ting] aside the ... [Trump administration’s Title 42] regulation ... and all [Title 42 alien expulsion] orders and decision memos issued by the Centers for Disease Control [CDC] ... and permanently enjoin[ing DHS] ... from applying [such regulation or orders] with respect to Plaintiff Class Members [“a group of asylum-seeking families who fled to the United States”].

As my colleague Andrew Arthur has noted, President Biden’s own DHS is expecting an unprecedented deluge of as many as 18,000 alien encounters a day at the southern border upon termination of the orders — “equal[ing] out to 6.57 million aliens per year — far beyond any prior record”. Doris Meissner, President Clinton’s Immigration and Naturalization Service Commissioner, said (in possibly the greatest understatement by a current or former federal government employee since “Houston, we have a problem.”) that “[t]he view of most people who have looked at this is that whenever Title 42 is lifted, it will create a major operational challenge[.]” As the states of Arizona, Louisiana, and Missouri argued to the U.S. District Court for the Western District of Louisiana:

  • [The termination of the Trump administration’s Title 42 orders represents] an imminent, man-made, self-inflicted calamity: the abrupt elimination of the only safety valve preventing this Administration’s disastrous border policies from devolving into an unmitigated chaos and catastrophe.

  • The CDC has no license to inflict wanton harms on the States without at least first considering what the magnitude of those harms might be and whether they could be mitigated.

  • [E]ven if the CDC were correct that the “short-term” nature of the Title 42 Orders ... meant that the States could [not] rely on the[m] being in place permanently, the States still could reasonably rely on the CDC not to revoke the Orders abruptly at a truly terrible time to do so. The Order’s timing will greatly exacerbate an already extant meltdown of operational control at the southern border.

  • [Biden’s DHS itself] predict[s] that the Termination Order will create an unprecedented surge at the border that will overwhelm [DHS’s] capacity to enforce immigration laws at the border — they predict that the daily number of aliens unlawfully trying to enter the United States will nearly triple.

The Biden administration notably did not seek a stay of Judge Sullivan’s order, other than a short one until December 21 in order to rearrange the deck chairs on the Biden administration’s border Titanic, sorry, to “prepare for the transition”. This is because, of course, the Biden administration actually wants to end its present use of Title 42 on the border, and already would have done so had it not been for the aforementioned federal court in Louisiana enjoining the termination on procedural grounds. As DOJ proudly proclaimed to Judge Sullivan, “CDC itself has already terminated those orders because it has determined that they are no longer necessary to protect the public health.”

DHS has the audacity to state in its press release trumpeting Judge Sullivan’s stay until December 21 that: “People should not listen to the lies by smugglers who will take advantage of vulnerable migrants, putting lives at risk. The border is closed, and we will continue to fully enforce our immigration laws at the border.” Well, as to DHS’s first sentence, I have noted that:

Around the world, word got out that a claim of fear of persecution upon apprehension at the border represented a virtual free pass into the U.S. — often trumpeted by alien smugglers seeking new business. And the smugglers weren’t engaging in puffery — they were accurately describing the situation.

As to DHS’s second sentence, I would suggest that while there may be prevarication going on, it isn’t coming from the smugglers.

When the Biden administration declined to seek a long-term stay, the states of Arizona, Louisiana, Alabama, Alaska, Kansas, Kentucky, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Virginia, West Virginia, and Wyoming sought to intervene in the case, in part on the basis that the federal government no longer “adequately represent the State’s interests in the continued validity of Title 42”. Not surprisingly, the Biden administration urged judge Sullivan to deny the states’ request, contending in part that:

Proposed Intervenor [States] are not able to satisfy their burden to show that the government does not adequately represent their interests. ... The government has vigorously defended the lawfulness of CDC’s Title 42 regulation and orders. ... [The States] contend that the adequacy of the government’s representation [of their interests] changed recently when they “learn[ed] the Federal Defendants would not defend the legality of the Title 42 policy by seeking an appeal.” ... [A]ll that has occurred so far is that the government has sought a temporary stay of the Court’s ... Order. [A]lthough the government is still in the process of deciding whether to appeal, disagreement over litigation strategy does not demonstrate inadequate representation.

So, a few days ago, the Biden administration actually appealed Judge Sullivan’s decision. Sort of. Maybe. Well, not really. DOJ told Judge Sullivan that it “now respectfully notif[ies] the Court that the Solicitor General has authorized an appeal ... [and t]he government will be filing a notice of appeal forthwith. Defendants also respectfully notify the Court that the Department of Health and Human Services (HHS) and [CDC] have decided to undertake notice-and-comment rulemaking to replace ... the regulation this Court vacated.” So far so good.

But then:

Once the appeal is docketed, the government intends to move the D.C. Circuit to hold the appeal in abeyance pending ... the government’s appeal of the preliminary injunction [in Louisiana v. CDC] enjoining implementation of CDC’s April 1, 2022 Termination Order, and ... the forthcoming rulemaking. ... The government respectfully disagrees with this Court’s decision and would argue on appeal, as it has argued in this Court, that CDC’s Title 42 Orders were lawful, that [the Trump administration’s regulation] is valid, and that this Court erred in vacating those agency actions. But an abeyance is warranted because other events may render it unnecessary for the D.C. Circuit to decide those questions.


This case is primarily a challenge to CDC’s Title 42 Orders, and CDC itself has already terminated those orders because it has determined that they are no longer necessary to protect the public health. If the government prevails in the Louisiana litigation and the Termination Order takes effect, Plaintiffs’ challenge to the Title 42 Orders will be moot. And ... HHS and CDC have themselves decided to undertake a new rulemaking to reconsider the framework under which the CDC Director may exercise her authority under 42 U.S.C. § 265 to respond to dangers posed by future communicable diseases. The outcome of that rulemaking could likewise moot Plaintiffs’ challenge to [the Trump administration’s regulation]. ... The Supreme Court and the D.C. Circuit often place cases into abeyance where, as here, pending regulatory developments may render further litigation unnecessary. [Emphasis added.]

Talk about bait and switch! Judge Sullivan has already vacated the Trump administration regulation and its Title 42 orders and issued a permanent injunction. He has already made a decision (however wrong-headed) on the merits. I don’t see how a possible Biden administration victory in Louisiana would make the plaintiffs’ challenge “moot”. The plaintiffs have already prevailed in their challenge. Judge Sullivan is not going to rescind his order should the Biden administration prevail in its appeal in the Fifth Circuit. Should he do so, the Biden administration could hypothetically resurrect the Trump administration’s regulation and orders in the future. I know, fat chance, but still theoretically possible.

And what would happen if the states prevail against the Biden administration’s appeal in the Fifth Circuit? Putting aside the possibility of Supreme Court review, could we expect the Biden administration, should it be rebuffed in its attempt to terminate on its own the use of Title 42 on the border, to vigorously fight Judge Sullivan’s doing it for them? I would predict that at such time, the Biden administration would simply walk away from its supposed appeal.

Now, Lee Gelernt of the American Civil Liberties Union, a lead attorney for the plaintiffs, is a bit suspicious, saying that he is “not surprised by the decision to appeal given the Biden administration’s vigorous legal defense of Title 42 over the past two years” and saying that “[c]ontrary to the states’ assumption, the Biden administration will appeal and will continue its vigorous legal defense of the unlawful and outdated Title 42 policy”. I can see one possible scenario for him to fear. Let’s say it’s the fall of 2024 and the Democrat nominee for president is trailing in the polls . . .