Criminal Justice & the Rule of Law

Federal Judge Orders Biden Administration to Continue Title 42

Yang Liu, Brandon Vines
Monday, June 27, 2022, 1:33 PM

Louisiana v. CDC marked a notable setback for Biden’s efforts to roll back Trump-era immigration policies and stop authorizing U.S. border expulsions on public health grounds.

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On May 20, a federal judge paused President Biden’s plans to resume permitting migrants and asylum-seekers to enter the United States by ending a Trump-era rule known as Title 42. Under the rule, noncitizens stopped at or near the border without proper travel documents are expelled pending a hearing on their case, often requiring them to wait in Mexico or Canada. The Title 42 rule has been enforced for two years, during which time more than 1.8 million people have been required to remain outside the U.S.

When the Biden administration began the process of ending the Title 42 rule in April, several states sued to halt the termination, arguing the new rule ending the program failed to comply with the Administrative Procedure Act (APA). In that May 20 ruling, Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana agreed with the plaintiff states and issued a preliminary injunction preventing the termination of Title 42 until the final ruling in the case. The Department of Justice has pledged to appeal the injunction.

Factual and Legal Background

The Title 42 rule is based on quarantine provisions in the Public Health Services Act of 1944. Codified at Section 265 of Title 42, from which the final rule derives its popular moniker, the relevant portion of the act permits the Centers for Disease Control and Prevention (CDC) upon finding the existence of “any communicable disease in a foreign country” to “prohibit, in whole or in part the introduction of persons and property from such country” if continued introduction would increase the danger of that disease’s introduction to the United States.

In March 2020, citing the coronavirus pandemic, the Trump administration issued an interim rule permitting the director of the CDC to suspend the introduction of persons into the U.S. from designated places for certain periods of time upon proper Title 42 factual findings. Immediately after, then-CDC Director Robert Redfield ordered the expulsion of “covered aliens” to the country from which they entered the U.S., their country of origin, or another practicable country. (Covered aliens are defined as persons traveling from Canada or Mexico, regardless of their country of origin, who would otherwise be held in a congregate government setting, such as a holding facility.) People with valid travel documents, including U.S. citizens or lawful permanent residents and their families, are exempted. Case-by-case exceptions are also permitted.

The final Trump-era rule required a review of continuing public health necessity every 30 days. The Title 42 rule, however, would not expire automatically. Instead, upon the CDC director’s finding that the serious public health danger has abated, the director needs to issue a formal notice in the Federal Register to terminate the rule.

In February 2021, President Biden issued an executive order to reevaluate immigration policies, including the Title 42 rule. Until recently, the Biden administration largely maintained the Title 42 program, defending the rule as a necessary measure to curb the spread of the coronavirus. But as outlined previously on Lawfare, President Biden’s efforts to roll back Trump-era limitations on asylum are largely ineffective while the border remains closed to asylum-seekers under the Title 42 rule. 

After a group of six families challenged the statutory and administrative legality of Title 42, the U.S. Court of Appeals for the D.C. Circuit upheld the expulsion power as broadly authorized by statute in March 2022, but found the plaintiffs were likely to succeed in showing that the Immigration and Nationality Act bars the U.S. from refouling people to countries where they may face persecution or torture.

In April of this year, the current CDC director, Rochelle Walensky, determined that per the latest pandemic data, the rule was no longer needed as a public health measure and ordered it terminated on May 23. Arizona, Louisiana, and Missouri disputed the order and filed suit in the Western District of Louisiana asking for a nationwide injunctive relief, claiming the CDC rule improperly avoided the APA’s notice-and-comment provisions, and 21 additional Republican attorneys general joined the lawsuit as plaintiffs.

As a threshold matter, defendants argued that the plaintiff states lacked standing as third parties with no interest in the means of enforcement of federal immigration laws against private individuals. The plaintiffs responded that they have “quasi-sovereign” interests in limiting immigration and attendant expenditures. The defendants then argued that even if the plaintiff states have standing, the injuries of their health care and education systems were not within Title 42’s “zone of interests,” which “pertains solely to the health effects of communicable diseases.” If these injuries fall outside the states’ zone of interests, the plaintiff states would lack standing, since states themselves generally cannot sue on behalf of private citizens. Further, the defendants contended that the order is “committed to the CDC’s discretion by law” and is thus not subject to judicial review.

The plaintiff states, for their part, advanced two primary claims. 

First, they argued that the CDC termination rule failed to comply with the procedures required by law. The APA mandates certain processes for the making, revision, and rescission of many agency rules. Such rules typically require both notice in the Federal Register and a period for public comment. The CDC termination rule did not provide for the usual requisite notice-and-comment period, but the APA permits agencies to avoid notice and comment in some circumstances if articulated by the agency at the time of rulemaking. The defendants invoked two exceptions to that claim: one related to good cause and another concerning rules regarding U.S foreign affairs. 

The defendants claimed that the APA permits agencies to circumvent notice and comment where there is a good-cause finding the procedure would be impractical, unnecessary, or contrary to the public interest. The exception is often used where notice would subvert a statutory scheme (for example, where notice of a price increase of a regulated good would result in shortages) or in emergency situations (for example, revoking pilot’s licenses for security reasons following the 9/11 attacks). They argued that the need to adapt to the evolving health crisis and the importance of ending the extraordinary suspension of normal immigration laws created a strong public interest in avoiding notice and comment.

Plaintiffs asserted, by contrast, that while there may be public interest in responding to an escalating pandemic, removing those same measures after the crisis had passed did not constitute good cause. The plaintiff states also contended that the 14 months since Biden’s executive order to reevaluate the Title 42 rule was ample time for the usual 30-day notice-and-comment period.

The additional exception cited by the defendants was grounded in the APA’s provision allowing agencies to avoid notice and comment for rules relating to a foreign affairs function of the United States. The defendants asserted that the termination rule implicated ongoing discussions between the U.S. and Mexico and Canada regarding how best to control transmission of the coronavirus over shared borders and therefore, they argued, that it directly implicated foreign affairs functions. In response, the plaintiff states asserted that more than a passing reference to foreign affairs and the border was needed; otherwise, the whole of immigration law could easily be exempted from the APA.

The plaintiffs’ second claim was that the CDC termination rule was arbitrary and capricious because it failed to consider, among other things, the immigration and financial impacts of termination on the states. (The APA permits courts to set aside rules that are “arbitrary [or] capricious.”) Defendants asserted that plaintiffs mischaracterized the public health rules as an immigration “safety valve” and, as such, that immigration and financial consequences are simply not relevant factors to a public health regulation. In other words, defendants argued that a pandemic public health measure should not be used to tighten general border security. Further, the defendants contended that the CDC termination rule did consider the states’ reliance interests and had dismissed them as not compelling upon consideration.

On April 27, after finding the plaintiff states had a substantial likelihood of success, Judge Summerhays granted the plaintiffs’ motion for a temporary restraining order (TRO). The TRO suspended the CDC termination order for two weeks pending final judgment, mandated that the Department of Homeland Security resume pre-termination order practices and benchmarks, and required the department to file weekly compliance reports. Summerhays issued a preliminary injunction in the case on May 20.

The Order: Louisiana v. CDC

Summerhays frames his opinion with the finding that the plaintiff states are entitled to “special solicitude,” which “relaxes the showing required for a state to establish standing.”

Citing the U.S. Court of Appeals for the Fifth Circuit’s holding in Texas v. U.S. and Texas v. Biden, Summerhays notes that the plaintiff states are exercising a “procedural right” by challenging the CDC’s failure to follow the notice-and-comment requirements and have “quasi-sovereign interests” because the termination order will impact the administration of health care and education systems. Summerhays further holds that the plaintiff states will suffer “cognizable injury” that is “traceable” to the termination order by noting that the order is likely to significantly increase border crossings, which will lead to higher education and health care costs for the states. Therefore, Summerhays concludes, the plaintiff states “have shown a substantial likelihood of establishing Article III standing.”

Summerhays then rebuts the defendants’ zone of interests and reviewability arguments. He asserts that Title 42 is not just a public health measure but also an immigration measure. Thus, the zone of interests of the termination order includes the plaintiff states’ interests in the health care and education systems that will be influenced by the increase of border crossings. He further holds that the case is reviewable because Title 42 does not give the CDC unbounded discretion. 

Summerhays then turns to the analysis of the case’s likelihood of success. He begins by highlighting the importance of the notice-and-comment process in ensuring “fairness and mature consideration of rules of general application.” Thus, citing the Fifth Circuit’s decision in U.S. v. Johnson, Summerhays notes that the good-cause exception that the government is claiming must be “read narrowly in order to avoid providing agencies with an ‘escape clause’ from the requirements Congress prescribed.” 

Summerhays then holds that the good-cause exception cannot be invoked because there should be sufficient time for a notice-and-comment process in light of the fact that the CDC was provided a 14-month period to review its Title 42 orders. He also rejects the second exception cited by defendants—the foreign affairs exception—by emphasizing that “post hoc rationalizations” submitted by the defendant are improper to review. Finally, Summerhays concludes that the plaintiffs have established a substantial likelihood of success because the plaintiff states will suffer an immediate and irreparable harm by the termination order. He further determines that the balance of harms and the public interest favor the plaintiffs given that the suing states are unable to protect their interest through the notice-and-comment process while the defendant still has “safety valves” contained in Title 42 that grant it “discretion to except” immigrants for “significant law enforcement, officer and public safety, humanitarian and public health interests” to ameliorate the harm to them.

Because he concludes the plaintiff states have established a substantial likelihood of success on the merits of their APA notice-and-comment claim, Summerhays then finds it unnecessary to rule on the plaintiff states’ argument that the termination order is “arbitrary and capricious” for not considering the immigration consequences and financial consequences to states.

Finally, Summerhays agrees with the plaintiff states and grants a nationwide injunction on the grounds that a limited injunction cannot provide complete relief, “given the ability of immigrants crossing the border to move freely from one state to another.” 

What’s Next?

The Biden administration has already indicated that it intends to dispute the order. On May 20, the Justice Department commented

The Centers for Disease Control and Prevention (CDC) invoked its authority under Title 42 due to the unprecedented public-health dangers caused by the COVID-19 pandemic. CDC has now determined, in its expert opinion, that continued reliance on this authority is no longer warranted in light of the current public-health circumstances. That decision was a lawful exercise of CDC’s authority.

The Department of Justice intends to appeal the court’s decision in Louisiana et al. v. CDC et al.

While Title 42 was set to expire on May 23, Summerhays’s ruling in Louisiana v. CDC ensured that the public health rule remains in effect today—constituting a definitive setback for Biden’s efforts to unwind his predecessor’s immigration policies. And though the Justice Department has signaled its plan to appeal, the timeline and outcome of this action remains unknown. Further, if Summerhays’s ruling is upheld, the CDC will be required to continue authorizing the border expulsions until the notice-and-comment process concludes—which could take months. For now, migrants seeking asylum will be required to wait, as they have since March 2020, in cities along the U.S. border.

Yang Liu is a criminal law fellow at the U.S. District Court for the District of Columbia. He holds a J.D. degree from Georgetown University Law Center and will pursue a LL.M. in National Security Law degree there. All opinions are his own and do not represent anyone else.
Brandon Vines is a Public Interest Fellow and JD candidate at Columbia Law School. He worked for the Carter Center monitoring the Syrian conflict and, later, electoral violence in the Democratic Republic of the Congo. He has also researched elections in South Africa, Myanmar, and Nepal. As a 2020 Justice John Paul Stevens Fellow, he supported death sentence appeals with the Federal Defenders for the Middle District of Alabama.

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