Federal Judge Blocks Biden from Ending Title 42
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A federal judge in Louisiana has temporarily blocked the Biden administration from ending expulsions of illegal immigrants under Title 42 of the U.S. Code, less than a month before their planned end.
The order was announced in a single-page notice by Judge Robert Summerhays, a Trump appointee on the U.S. District Court for the Western District of Louisiana. He is presiding over Louisiana v. CDC, a lawsuit joined by Arizona and Missouri against the Biden administration over its plans to end Title 42’s use on May 23.
Summerhays issued a temporary restraining order, designed to block the decision to end Title 42 expulsions until arguments for a more formal injunction may be considered. The order will expire in 14 days, on May 9.
Title 42 allows the U.S. to remove foreign nationals who are deemed to pose a risk to the “public health” of the United States. During the coronavirus pandemic, it was invoked by the Trump administration in March of 2020 to summarily expel migrants who crossed the border illegally, often on the same day they arrived, without proceeding through the lengthy normal deportation process.
The Biden administration, citing the pandemic, continued its use upon assuming office, though it added exemptions for unaccompanied children and vulnerable families.
As of last week, per U.S. Customs and Border Protection, over 1.7 million illegal immigrants had been expelled from the U.S. under Title 42 provisions. In comments to NPR, Theresa Cardinal Brown of the Bipartisan Policy Center called Title 42 the “primary tool” of controlling illegal immigration along the Southern border. Department of Homeland Security officials have warned that, without Title 42, migrant apprehensions could rise to 18,000 per day, overwhelming an already strained processing system.
The use of Title 42 has elicited fierce criticism from progressive groups and some Democrats in Congress, who have claimed that migrants with legitimate asylum claims are being expelled, in violation of international law. Progressive ‘Squad’ lawmakers in the House, led by Representative Alexandria Ocasio-Cortez (D., N.Y.), have long called on the administration to end its use, a demand echoed by Senators Elizabeth Warren (D., Mass) and Bernie Sanders (I., V.T.).
The Title 42 restrictions have garnered support from dozen of sheriffs, border patrol unions, states along the Southern border, as well as most Republicans in Congress, who claimed that its use was preventing a “border invasion.”
Previously, White House press secretary had said that use of Title 42 for immigration was decided by the Centers for Disease Control (CDC), and that its extension could only be changed by Congress.
On April 1, the CDC announced that it was ending the policy, citing the lowered risk of the coronavirus to much of the U.S. population. Senate Republicans, in response, blocked a $10 billion Covid relief bill in citing the decision, while Texas Governor Greg Abbot mobilized the National Guard to conduct enhanced inspections of vehicles and bus illegal immigrants to Washington, D.C.
Eight Senate Democrats facing re-election campaigns in November, including Maggie Hassan (N.H.), Mark Kelly (Ariz.), Raphael Warnock (Ga.), Catherine Cortez Masto (Nev.), also questioned the move. Even Senator Chris Coons (D., Del.), who holds Biden’s former Senate seat and is considered his closest Senate ally, said on CBS’s Face the Nation that he hoped that the decision would be “reconsidered appropriately.”
Louisiana’s legal argument centers on the CDC’s alleged violation of the Administrative Procedure Act (APA), which mandates a “notice-and-comment” period for rule-making. The argument was previously used to revive the Migrant Protection Protocols, known as the “Remain in Mexico” policy, which required asylum seekers to wait in Mexico as their claims were processed in the U.S. After the Biden Administration ended the policy, a federal judge in Texas voided the decision, citing the APA.
