Judge blocks Biden administration from lifting Title 42 border policy

A federal judge on Friday blocked the Biden administration’s move to lift Title 42, a Trump-era policy used to expel more than one million migrants at the southern border.

The pandemic-related health order, which was implemented in March 2020 to control the spread of Covid, was set to expire on Monday. The measure gave the U.S. the authority to immediately expel asylum seekers without a legal process, and Friday’s ruling means an even longer waiting time for migrants seeking refuge in the United States.

Louisiana U.S. District Judge Robert R. Summerhays, an appointee of former President Donald Trump, ruled that the restrictions must stay in place until a lawsuit by 24 states, led by Arizona, Louisiana and Missouri, is resolved in the courts. In the April 3 lawsuit, filed after the Centers for Disease Control and Prevention announced plans to lift the public health order, the states argued the policy needed to remain to avoid “wave of illegal migration and drug trafficking.”

The Department of Justice on Friday appealed Summerhays’ decision, though it’s unlikely the restrictions will be lifted by Monday as planned. The administration will comply with the court’s order while the appeal is processed, White House press secretary Karine Jean-Pierre said in a statement, adding that the White House disagrees with the decision.

“As the appeal proceeds, the Department of Homeland Security will continue planning for the eventual lifting of Title 42 in light of CDC’s public health judgment, at which point anyone who attempts to enter the country unlawfully will be subject to Title 8 Expedited Removal proceedings, if they do not have grounds to remain in the United States,” Jean-Pierre said.

But inside the West Wing, the reaction was far more mixed — with some Biden aides breathing a sigh of relief.

The situation at the southern border had become a political mess for the White House with Republicans playing up the possibility of a massive uptick in migrants crossing from Mexico into the United States. Even some Democrats had openly questioned the White House’s decision to end the policy, arguing that the nation’s immigration system would not be ready to handle the influx, while also worrying about the political ramifications in a midterm year.

And the White House also carefully registered its objections on procedural grounds, that the authority to set policy should lie within the CDC, not the courts. That thinking — much like the administration’s appeal of the decision to overturn the mask mandate on public transportation — was to preserve the power to reimplement such measures if the pandemic were to worsen in the months ahead.

But, broadly, Biden aides felt they had been placed in a no-win situation: if Title 42 were overturned, the resulting flood of migrants could create a Republican talking point. But conversely, leaving it in place could frustrate immigration activists and parts of the Democratic base who believe the asylum seekers should be allowed in, further depressing party enthusiasm ahead of what could be a challenging election year.

Biden ran on revamping the immigration system and putting an end to Trump-era deportation policies, such as Title 42. He kept the policy in place after taking office, citing a raging pandemic.

Republicans on Friday cheered the court’s decision.

“The court made the right decision to keep Title 42 in place. Ending Title 42 would be a complete disaster for a nation already suffering from the Biden Border Crisis,” Sen. John Barrasso (R-Wyo.), chair of the Senate Republican Conference, said in a statement. “We have a humanitarian, public health, and national security emergency happening at our southern border. Our border patrol agents are overwhelmed by a stampede of illegal immigrants crossing the border every day. The President was warned over and over not to end Title 42. He ignored those warnings.”

After the CDC announced its intent to lift the restrictions last month, a growing chorus of bipartisan lawmakers accused the administration of not having a plan in place to deal with a surge at the border once the policy expires. Sen. Mark Kelly of Arizona, one of the Democrats who has hammered the White House for not having a post-Title 42 game plan, said Friday that "Arizonans have paid the price for Washington’s failure to plan ahead and secure the border."

"Today’s decision does not change the fact that there is a crisis at the border and there must be a detailed plan that can be implemented before Title 42 is lifted. Arizonans deserve a secure, orderly, and humane border response and I will continue to hold the administration accountable to that,” Kelly said in a statement.

Summerhays' ruling, while expected, was a blow for immigration advocates and some Democrats, who have ramped up pressure on the administration to abandon the policy in recent months, as Covid cases plummeted across the U.S. Advocates and lawmakers have expressed concern that Title 42 was being used not as a public health measure, but as a means for controlling the influx at the border.

The Congressional Hispanic Caucus called the ruling "outrageous" and "ridiculous" and said lawmakers must pass immigration reform, as Biden has called for.

“Today’s federal court ruling on Title 42 is outrageous, ridiculous, and erodes our asylum system. Title 42 is a public health emergency policy that can be initiated and ended by an administration. It is not a way to manage the border. Furthermore, Title 42 denies asylum seekers their legal rights under American law to due process in the U.S. and goes counter to international humanitarian norms and values,” Chair Raul Ruiz (D-Calif.) said in a statement.

But another court order puts some limits on Summerhays' ruling, said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead attorney in the Title 42 lawsuits in Washington, D.C.

On March 4, a three-judge panel in the D.C. Circuit Court unanimously ruled that the CDC could use Title 42 to expel migrant families — but not back to danger without giving them the chance to apply for protection against persecution and torture. Even though the Louisiana court has now stopped Title 42 from lifting on Monday, Gelernt said, the D.C. Circuit Court’s order will prevent it from being used to expel migrant families to persecution or to torture.

Krista Mahr and Marianne Levine contributed to this report.