Since taking office, President Joe Biden’s administration has continued to rely on Title 42, a public health authority invoked at the onset of the coronavirus pandemic that allows border officials to turn migrants away at the US-Mexico border.
But just days away from Title 42 ending this month, Judge Robert Summerhays of the Louisiana Western District Court found that the Biden administration didn’t follow the right procedures in ending the authority and argued that while the administration may invoke an action under emergency conditions, those may not apply with respect to terminating it.
“Simply put, the CDC has not explained how the present circumstances prevented the CDC from issuing the Termination Order through the required notice and comment process under the APA,” Summerhays wrote, referring to the Administrative Procedure Act.
The termination of Title 42, the judge concluded, is not exempt from the notice and comment process, which can potentially take months. The public health authority, which has been fiercely criticized by immigrant advocates, will remain in effect for now.
Lee Gelernt, ACLU attorney leading lawsuits against Title 42 in Washington, DC, called the ruling “wrong.”
“The ruling is wrong, inconsistent with the considered judgment of the CDC, and should be immediately appealed by the administration. The lawsuit is the height of hypocrisy; the States that brought it seem only to want COVID restrictions when it comes to asylum seekers,” he said in a statement.
“Notwithstanding this injunction, a parallel injunction in DC prohibits the use of Title 42 to expel families who would face persecution or torture,” Gelernt added.
Department of Justice spokesman Anthony Coley said Friday that the department intends to appeal the decision.
“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,” Coley said in a statement.
White House press secretary Karine Jean-Pierre said the Biden administration disagreed with the ruling, but that it would “continue to enforce the CDC’s 2020 Title 42 public health authority pending the appeal.”
In the meantime, she said, the Department of Homeland Security “will continue planning for the eventual lifting of Title 42 in light of CDC’s public health judgment.”
The ruling stems from a lawsuit filed by Arizona, Louisiana and Missouri in April against the Biden administration’s decision to end Title 42. More than a dozen states, mostly GOP-led, later joined the suit.
Migrants encountered under Title 42 are either expelled to their home countries or into Mexico, where human rights advocates say they have documented many abuses.
This story has been updated with additional details Friday.