Under Today’s CDC Order, DHS Will Stop Enforcing Title 42 on May 23, 2022
For the past 2 years, applying an obscure public health law (42 U.S.C. §§ 265 and 268), the federal government has nearly eliminated this country’s asylum system by enforcing Title 42, a policy of summarily expelling asylum-seekers under the pretext that doing so would protect the United States from the spread of COVID-19. In today’s Order, the CDC Director terminated Title 42, finding that “there is no longer a serious danger that the entry of covered noncitizens, as defined by [the Title 42 policy], into the United States will result in the introduction, transmission, and spread of COVID-19.” The CDC Director further found that “a suspension of the introduction of covered noncitizens is no longer required in the interest of public health.”
The termination, however, will not go into effect until May 23, 2022. The delayed implementation of the Termination Order is ostensibly to allow DHS to implement COVID-19 mitigation protocols, including a vaccination program for asylum-seekers, and to “prepare for full resumption of regular migration processing.” Until May 23, 2022, DHS will continue enforcing the existing Title 42 policy with the same existing humanitarian exceptions. In addition, the CDC has reserved the right to issue a new Title 42 policy in the future “[i]f, for example, there is a substantial change in the public health situation with respect to the pandemic, such as due to new and particularly concerning SARS-CoV-2 variants.”
Anticipating Future Legal Challenges to the CDC Order
As our Litigation Tracker has documented, states like Texas, Florida, and Arizona have filed multiple lawsuits attempting to block the Biden administration’s immigration policies as “arbitrary and capricious” under the Administrative Procedure Act (APA), a statute that requires federal agencies to engage in reasoned decision-making. Today’s thirty-page Order terminating Title 42 may reflect the expectation of a similar legal challenge. The Order, for example, goes to great lengths to explain the multiple factors the CDC considered when deciding to terminate Title 42, including the status of the pandemic, including receding numbers of cases; the CDC’s recent decision to shift from eliminating COVID-19 transmission to disease control and healthcare system protection; and available mitigation measures like testing, vaccines and boosters, and improved COVID-19 therapies. The Order also stresses that it is “based upon the most recent science and data available to the CDC,” and that CDC is making “continued efforts toward aligning the public health measures response to the COVID-19 pandemic with the best available science.”
In addition, the Order sets forth legal considerations that would be relevant in an APA challenge, including the purported “reliance interests” of states and local governments who might argue that they have come to depend, or rely upon, the Title 42 Policy. The CDC stressed that Title 42 has always expressly been a temporary policy. The Order further points out that states and local governments cannot have reasonably relied on the federal government to continue enforcing Title 42 as a means of controlling immigration, because the authorizing statute and the policy itself have always made clear that Title 42 is a public health measure, not a tool of immigration control.
Anticipating a possible legal challenge is not unreasonable. Because today’s Order will not be implemented until May 23, 2022, there is ample time for anti-immigrant constituencies to file a lawsuit and seek a court order that would prevent the CDC’s Order from going into effect and ending Title 42. Alternatively, a challenge could be raised through already pending litigation, such as the Texas v. Biden lawsuit in the Northern District of Texas, which challenges exceptions made to the existing Title 42 policy for unaccompanied children and families with minor children. A status report regarding next steps in that litigation is due on April 7, 2022.
Possible Expansion of Remain in Mexico and Delayed Due Process
In connection with the projected termination of Title 42 in May, DHS has already indicated that it will place people in the cruel and inhumane Remain in Mexico (RMX) program in much greater numbers. As we have documented in the Litigation Tracker, the Biden administration reinstated RMX in December under a district court order and expanded it to apply to the entire Western Hemisphere, including non-Spanish speaking Black majority countries like Haiti and Jamaica. The Biden administration is currently appealing to the Supreme Court the court order that has required the administration to reinstate RMX. Read more about the Biden v. Texas Supreme Court case that will determine the future of RMX and serious implications on executive powers here. Learn more about what's at stake in the case and ways to take action at SafeNotStranded.org.
As always, thanks for reading!
JAC Legal Director