The Biden administration is being told it cannot end Title 42, an important border policy that allows authorities to quickly expel illegal immigrants at the southern U.S. border back to Mexico over pandemic health concerns. The policy had been put in place by the Trump administration.
In a 47-page ruling on Friday, Judge Robert Summerhays granted a nationwide injunction to block the Biden’s termination of Title 42, saying the Centers for Disease Control and Prevention’s (CDC) move to terminate the policy didn’t comply with the Administrative Procedure Act that requires public notice and time to gather public comment on the plan.
“Simply put, the CDC has not explained how the present circumstances prevented the CDC from issuing the Termination Order through the required notice and comment process under the [Administrative Procedure Act],” Summerhays wrote. The notice and comment process can potentially take months to complete.
“Given the impact of the Termination Order on the Plaintiff States and their showing that the CDC did not comply with the [Administrative Procedure Act], the Court concludes that the public interest would be served by a preliminary injunction preventing the termination of the CDC’s Title 42 Orders,” the ruling reads.
The ruling means the CDC is blocked from terminating Title 42, and the policy will remain in place amid ongoing litigation until a final decision is made on the merits of the case. The full trial is likely to take many months.
The Department of Justice (DOJ) said it will appeal the latest ruling on behalf of the Biden adminsitration.
The White House said it disagreed with the court’s ruling, but would comply with it pending the DOJ’s appeal.
Since Title 42’s implementation in March 2020 under the Trump administration, border agents have been able to turn illegal immigrants away from the southern U.S. border over 1.9 million times without giving them a chance to seek asylum.
The CDC had announced on April 1 it would end the emergency border powers on May 23, citing declining cases of COVID-19. Critics asked why the CDC was ending the policy while, at the same time, encouraging Covid mitigation such as masking, to continue for Americans.
Prior to the CDC’s announcement, White House director of communications Kate Bedingfield said that ending Title 42 would result in an expected “influx of people to the border.”
The CDC decision prompted 24 states, led by the attorneys general of Arizona, Louisiana, and Missouri, to file a lawsuit on April 4, seeking an injunction to keep the policy in place. The states, all with Republican attorneys general, argued in part that the termination of Title 42 would “induce a significant increase of illegal immigration into the United States, with many migrants asserting non-meritorious asylum claims.”
DHS Secretary Alejandro Mayorkas had said on May 1 the agency was preparing for a possible flood of U.S.-bound immigrants at the southern border, saying there could be as many as 18,000 migrants a day if Title 42 is terminated.
Republicans were joined by numerous Democrats who said the administration was acting irresponsibly in ending the policy. Estimates range from 200,000 to 400,000 individuals waiting in Mexico to cross the border once Title 42 is dropped.