A federal judge in Louisiana grappled on Friday with whether the Biden administration can end a controversial Trump-era pandemic restriction, known as Title 42, later this month.
The public health authority at the center of the case allows officials on the US-Mexico border to turn migrants back to Mexico or their home countries because of the public health crisis – an unprecedented move invoked at the onset of the coronavirus pandemic.
Since taking office, President Joe Biden’s administration has continued to rely on the authority, but in early April the US Centers for Disease Control and Prevention announced plans to terminate the order. The CDC said it’s no longer necessary given current public health conditions and the increased availability of vaccines and treatments for Covid-19. The policy is scheduled to end on May 23.
In a more than two-hour hearing on Friday morning, states that brought a lawsuit against the decision to terminate the authority emphasized the costs, such as health care, to states if the authority ends and potentially more migrants are released into the US. They also argued the administration didn’t go through notice and comment, a regulatory procedure.
“They have no idea what the harms are to the states,” said Arizona Deputy Solicitor General Drew Ensign, who argued on behalf of the more than 20 states.
The Justice Department, meanwhile, stressed the emergency nature of the order and the CDC’s authority to invoke or terminate it.
“States don’t seriously challenge the public health determination,” said Justice Department attorney Jean Lin, adding that there’s no basis to use Title 42 as a safety valve.
Judge Robert Summerhays, who presided over the hearing, occasionally jumped in during arguments and largely focused his questions on the harm to the states and whether the administration followed proper procedures, noting that emergency conditions have changed, potentially allowing for outside input.
Lin argued the CDC must have the ability to stay flexible and respond promptly.
Summerhays said he’d take the matter under consideration and rule before May 23, when the administration intends to end Title 42.
“Today was a great day,” Louisiana Deputy Solicitor General Scott St. John said following the hearing. “The judge asked very thoughtful questions.”
States push back
The CDC’s decision to wind down Title 42 received fierce criticism from Republicans and Democrats alike over whether ending the authority is justified and whether officials are prepared to handle an expected increase in migrants at the border. On Capitol Hill, Democrats are grappling with whether to allow a vote on Title 42 as they try to pass stalled Covid-19 aid.
Arizona, Louisiana and Missouri – whose lawsuit was before the judge on Friday – took the fight over Title 42 to court last month, arguing proper procedures hadn’t been followed when the administration announced an end to the policy and that the administration hadn’t provided a satisfactory explanation for ending it.
More than a dozen states, mostly GOP-led, joined the suit, all similarly arguing that ending the authority and potentially releasing more migrants into the US would strain state resources.
Late last month, Summerhays issued a temporary restraining order in the lawsuit against the Biden administration’s decision to end the authority. The states asked for an extension in light of that order expiring.
Summerhays granted the extension this week, meaning the Biden administration is prevented from winding down the public health order until the court’s decision on the case or May 23, when the administration planned to end Title 42.
The Biden administration has argued the pandemic landscape has given way to ending the public health authority and that the order was an extraordinary measure.
The end of the authority would mean a return to traditional immigration protocols that have been in place for decades. Under that system, migrants are either removed from the country, detained or released into the US while their cases make their way through immigration court.
Homeland Security Secretary Alejandro Mayorkas recently told House lawmakers that the Biden administration’s preparations for the US-Mexico border when pandemic restrictions lift are ongoing, conceding that there’s likely to be an influx of migrants when that happens.
“With the Title 42 public health order set to be lifted, we expect migration levels to increase, as smugglers seek to take advantage of and profit from vulnerable migrants,” Mayorkas said during a House panel hearing. “We will continue to enforce our immigration laws.”
He outlined the six pillars of those plans, ranging from surging resources to the southern border to cracking down on transnational criminal organizations.
Arizona and Texas bus migrants to DC
Still, Republicans have slammed the administration. Arizona’s Republican Gov. Doug Ducey announced on Wednesday that the state will bus migrants encountered at the Arizona-Mexico border to Washington, DC, following the lead of Texas Gov. Greg Abbott.
Arizona, like Texas, has been grappling with an influx of migrants at the shared border with Mexico and has criticized the Biden administration for wanting to terminate Title 42.
Ducey cited a strain of resources as among the reasons for offering voluntary transportation to Washington.
“With Arizona community resources under all-time demand, and little action or assistance from the federal government, individuals who entered Arizona seeking asylum have the opportunity to voluntarily be transported to Washington, D.C. The transportation will include meals, and onboard staffing and support,” according to a news release.
Last month, Texas began busing migrants arrested at the border and released pending their immigration court proceedings to Washington on a voluntary basis. Migrants who spoke to CNN said they planned to continue to other cities in the US upon arriving in Washington and were grateful for the transportation.
Local organizations have been assisting migrants dropped off at Union Station by helping them to their next destinations or providing any services they may require.
This story has been updated with additional developments Friday.