March 6, 2023
Title 42 cases in limbo as DHS races to finalize Biden’s asylum ban
Two weeks ago, both the Supreme Court and the Fifth Circuit removed Title 42-related cases from their respective March oral argument calendars. SCOTUS gave no explanation for its action, while the Fifth Circuit said only that the appeal regarding the termination of Title 42 is stayed until May 11, 2023—the day the COVID-19 national public health emergency expires, which the Biden Administration has argued will moot both cases.
Meanwhile, DHS released its proposal for the Stephen Miller-inspired asylum ban, which it has committed to trying to finalize by May 11. As expected, the details of the proposal are awful, and its issuance represents a betrayal of campaign promises by the Biden Administration. Members of the public (regardless of immigration status) are encouraged to submit comments by the March 27 deadline. Peruse comments already submitted here.
Red state lawsuit on CHNV parole programs barrels toward bench trial before Judge Tipton*
The Texas-led lawsuit challenging new parole programs for certain nationals of Cuba, Haiti, Nicaragua, and Venezuela (on which we previously reported) is moving quickly. After the 20 states (now 21 to include Oklahoma) filed a motion to preliminarily enjoin (block) the programs while the case proceeds to final judgment, Judge Tipton informed the parties that instead of ruling on that motion, he wants to go directly to a bench trial—and fast, suggesting that he could be ready to hear the case in April. The parties are currently discussing possible trial schedules, which they must present to Judge Tipton by Monday.
*The asterisk around all of this is that the Biden Administration’s motion to transfer the case somewhere to be randomly assigned to a judge (instead of Texas being able to handpick its judge, as it did with Tipton) remains pending. That said, Judge Tipton did not seem inclined to grant the motion during a February 21 hearing (we’ll post the transcript on the case page once we get a copy).
New TX lawsuit takes aim at DHS “Alternatives to Detention” program (and protections for its own pregnant and postpartum employees)
Also in February, Texas filed a new suit claiming that the $1.7 trillion omnibus appropriations bill passed by Congress and signed by President Biden in December of last year—and which is funding huge swaths of the federal government—is unlawful under the Constitution’s “Quorum Clause” because (Texas claims) the House of Representatives lacked a quorum when it voted on final passage, as allegedly shown by a majority of its members voting via the House’s proxy voting policy. [The D.C. Circuit rejected a similar legal challenge to different legislation in a case brought in 2020 by House Republicans.]
Although Texas’s legal claim applies to the entire legislative act, it seeks to enjoin (block) just two provisions of the 1653-page bill: a $20 million allocation to DHS’s “Alternatives to Detention” Program, which uses more humane and less expensive tools like GPS to monitor noncitizens who would otherwise be unnecessarily detained; and the “Pregnant Workers Fairness Act,” which will newly require covered employers–including states as employers–to provide certain accommodations for pregnant and postpartum employees once the law goes into effect in June.
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As always, we’ll keep you posted on these and other cases.
Thanks for reading,
JAC Communications Coordinator