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Advocates are calling on the Biden administration to take an unusual approach in the legal battle over Title 42: Challenge a court ruling that blocks it from being lifted but otherwise cave to the court’s demands.
A ruling last week blocked the Biden administration from rescinding the Trump-era policy that denies migrants their right to seek asylum.
It’s a case not centered on the merits of the policy but whether the Biden administration followed administrative laws surrounding rulemaking.
Judge Robert Summerhays of the U.S. District Court in Louisiana‚ a Trump appointee, sided with states in determining the Biden administration had to launch a notice and comment process in order to nix the policy.
The Biden administration has pledged to appeal the ruling, and while advocates want them to take the additional step of seeking a stay to freeze the order, some also say they should just go ahead and get the rulemaking over with.
“I think Title 42 needs to end immediately. The quickest way to do that is to obtain a stay,” said Lee Gelernt, deputy director of the American Civil Liberties Union’s immigrants’ rights project.
“If the administration cannot obtain a stay then doing notice and comment quickly would be more immediate than allowing an appeal to go forward over months and possibly a year or more,” added Gelernt.
The decision by the court in effect requires the Biden administration to jump through more administrative hoops to wind the order than the Trump administration took in creating it. The policy was initially crafted not through rulemaking but through an emergency order.
Its status has been reviewed by the Centers for Disease Control roughly every 30 days since its inception – its impermanent nature and continual review something the government argues is key to why a formal rulemaking process isn’t required.
Even an eventual interim rule published by the Trump administration months into Title 42’s use required only a notice to terminate the policy.
Still, the court said Biden must complete the notice and comment rulemaking process required under the Administrative Procedures Act (APA), siding with states who say they have a right to comment on the policy shift.
Summerhays ruled the pandemic created circumstances that justified putting in place an emergency order without a formal notice and comment period, but its lifting should be done through the thoughtful process required by the APA.
“An agency’s response to a dangerous and largely unknown contagious disease may justify emergency action that dispenses with the normal rulemaking process,” wrote Summerhays.
“The same emergency conditions do not exist—or at least the CDC has not explained how such emergency conditions exist—with respect to terminating Its COVID-related orders based on improving conditions and allowing DHS to resume normal operations.”
Those who want to lift Title 42 see it as an unnecessary hurdle to return to what had been the status quo for decades.
“We’re now ready to return to immigration law as Congress has enacted it and as every prior administration has enforced it. Then I think you should be able to look at what they’re saying as a basis for why they want to return to the way we’ve always done things,” said César Cuauhtémoc García Hernández, an immigration law professor at Ohio State University.
The Biden administration faces hurdles in challenging the Louisiana court’s ruling.
The appeal in the case will head to the Fifth Circuit, one of the more conservative-leaning appeals courts.
Judges there also sided with the states on another APA challenge of a Biden rescission of a Trump-era policy. In that case, the Fifth Circuit ruled that the Department of Homeland Security needed to more fully explain its rationale for rescinding Remain in Mexico, formally known as the Migrant Protection Protocols.
“I don’t think the Fifth Circuit is going to give them any relief so it’s going to wind up going to the Supreme Court,” said Allen Orr, president of the American Immigration Lawyers Association.
“The Biden administration by the time it actually gets to the Supreme Court, they could go through the proposed rulemaking, although it’s not needed, just to meet the requirements of the court.”
It’s not clear that the Supreme Court would take the case, let alone rule in Biden’s favor.
But the Biden administration might be resistant to taking the faster road to unwinding Title 42. It has relied on Title 42 heavily, keeping the policy in place for over a year even as it rescinded other Trump immigration moves.
It may also want to avoid setting a precedent of having to go through a rulemaking process when it believes one is not necessary.
García Hernández also argued that the notice and comment process may not go as quickly as some may like. While departments have some control over the time period under which people can comment, it still often takes months to review them in order to issue documents showing the government’s response to stakeholders.
The ruling is frustrating to those who believe it is keeping in place an illegal policy. Title 42 has warped the use of the law to masquerade border policy as a public health issue, they argue.
“That’s the main issue that I hope a higher court will reach into – that Title 42 is not about border control. Therefore it’s not legitimate for Title 42 to address border control,” Orr said.
While the Louisiana case is being argued solely on procedural grounds, other cases working their way through the system have more directly challenged Title 42’s impact on asylum law.
Gelernt and the ACLU had a recent victory in a case looking at the merits of Title 42, with another Trump-appointed judge ruling that the Biden administration could not expel families with children to places where they could face persecution or torture.
In that case the judge also questioned the need for Title 42 in the face of progress fighting the pandemic, saying the order looks “like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.”
The ruling in the case took effect Monday – the same day Title 42 would have been lifted, if not for the Louisiana case.
The interaction of the two rulings means the Department of Homeland Security must now weigh the concerns of families it would otherwise plan to swiftly expel under Title 42.
“The skirmish over procedural issues in the Louisiana case obscures the human dimension of Title 42 which is that migrants are being sent back to horrific danger and there’s never been and certainly now there is not a public health justification,” Gelernt said. “States in this case are using a procedural law to keep in place covid restrictions that they believe are only necessary when dealing with migrant asylum seekers.”