December 1, 2022
Title 42 Held Unlawful by DC Judge; Red States Seek to Intervene to Appeal
Two weeks ago, the “Title 42” expulsion policy—first implemented by Trump in March 2020 ostensibly to prevent the “introduction” of COVID-19 to the U.S, but really to block asylum seekers from exercising their right to seek safety—was struck down in Huisha-Huisha, a case before a district court judge in the District of Columbia. The judge’s vacatur (nullification) of the Title 42 policy is scheduled to go into effect on December 21.
Vacatur of Title 42 will effectively moot red states’ ongoing challenge to the Biden Administration’s May 2022 decision to terminate it. But red states are still fighting to keep the draconian policy in place: soon after the Huisha-Huisha decision issued, an Arizona-led coalition of states filed a motion asking to intervene in that case in order to appeal the decision (the federal government says it hasn’t yet decided whether to appeal). That motion to intervene will be fully briefed as of today and will likely be decided soon—but the fight over Title 42 is not over yet.
Unfortunately, even if the inhumane Title 42 policy does finally end, the movement to defend asylum continues: the Biden Administration is reportedly considering resuscitating other extreme Trump-era policies to deny asylum seekers their rights under U.S. law.
SCOTUS Hears Oral Argument on Blocked ICE Enforcement Guidance
On Tuesday, the Supreme Court heard more than two hours of oral argument in USA v. Texas, a case Texas brought challenging guidance DHS Sec. Mayorkas issued to ICE on how to prioritize the agency’s limited enforcement and detention resources (see our July 22 newsletter for more background). Although Texas’s challenge focuses on a relatively small population, how the Supreme Court decides the legal questions in the appeal could have profound consequences beyond immigration. One threshold question, for example, is whether Texas even has “standing” (the legal right to bring the case at all), and the Justices spent significant time on that issue, among others. How Texas’s standing is resolved could significantly affect all states’ ability to challenge federal policy on a whole host of issues that have been the subject of litigation in recent years in cases brought by red and blue states alike.
There are a tangle of arguments at play in this appeal, and it is anyone’s guess how it will come out. The Supreme Court is expected to issue a decision before its current term ends next summer.
We’ll keep you posted! (And if you’ve found these newsletters helpful over the year, please help us keep it going by making a tax-deductible gift to JAC this holiday season!)