A federal judge in Louisiana has ruled Title 42 will remain in place, blocking the U.S. government's plan to end the policy.
The ruling is just the latest instance of a court derailing the president’s proposed immigration policies along the U.S. border with Mexico.
While the administration can appeal, the ruling sharply increases the odds that restrictions will not end as planned on Monday. A delay would be a blow to advocates who say rights to seek asylum are being trampled, and a relief to some Democrats who fear that a widely anticipated increase in illegal crossings would put them on the defensive in an already difficult midterm election year.
The Trump-era policy had allowed officials to deport migrants immediately, without a chance for asylum, over public health concerns, like COVID-19. The policy has been in place since the start of the pandemic and the goal was to limit the spread of COVID-19, although CDC scientists said there was no evidence that enacting Title 42 would slow the virus’ spread in the U.S.
Migrants have been expelled more than 1.9 million times since March 2020 under Title 42.
U.S. District Judge Robert Summerhays in Lafayette, Louisiana, ordered that the restrictions stay in place while a lawsuit led by Arizona and Louisiana — and now joined by 22 other states — plays out in court.
The states argued that the administration failed to adequately consider the effects that lifting the restrictions would have on public health and law enforcement. Drew Ensign, an attorney for the state of Arizona, argued at a hearing that the U.S. Centers for Disease Control and Prevention failed to follow administrative procedures requiring public notice and time to gather public comment.
Jean Lin, a Justice Department attorney, told the judge that the CDC was empowered to lift an emergency health restriction it felt was no longer needed. She said the order was a matter of health policy, not immigration.
Summerhays, who was appointed by President Donald Trump, had already ruled in favor of the states by halting efforts to wind down use of the pandemic-era rule. He said last month that a phaseout would saddle states with “unrecoverable costs on healthcare, law enforcement, detention, education, and other services.”
Title 42 is the second major Trump-era policy to deter asylum at the Mexican border that was jettisoned by President Joe Biden, only to be revived by a Trump-appointed judge.
Last month, the U.S. Supreme Court heard arguments on whether to allow the administration to force asylum-seekers to wait in Mexico for hearings in U.S. immigration court. That case, challenging a policy known as “Remain in Mexico,” originated in Amarillo, Texas. It was reinstated in December on the judge’s order and remains in effect while the litigation plays out.
What is Title 42?
Title 42 is part of the Public Health Service Act of 1944 aimed at preventing the spread of communicable diseases in the country. According to the law, whenever the U.S. surgeon general determines there is a communicable disease in another country, health officials have the authority, with the approval of the president, to prohibit “the introduction of persons and property from such countries or places” for as long as health officials determine the action is necessary. That authority was transferred from the U.S. surgeon general to the director of the CDC in 1966.
Congress approved a similar law in 1893 during a cholera epidemic that gave the president authority to exclude people from certain countries during a public health emergency. It was used for the first time in 1929 to bar people coming from China and the Philippines during a meningitis outbreak.
Why was it activated?
The Trump administration invoked Title 42 for the first time since its creation in March 2020 as a way to help stop the spread of COVID-19 in immigrant detention centers, where many migrants are placed after they arrive at the U.S.-Mexico border.
According to The New York Times, Stephen Miller, a senior adviser to former President Donald Trump, had pushed the idea to invoke Title 42 at the U.S.-Mexico border as early as 2018, long before COVID-19 emerged.
As COVID-19 cases rose in the U.S., then-CDC Director Robert Redfield enacted Title 42 to seal the land borders with Canada and Mexico for migrants seeking asylum on March 20, 2020. The Associated Press reported that then-Vice President Mike Pence ordered Redfield to enact Title 42 over the objections of CDC scientists who said there was no evidence that it would slow the virus’ spread in the U.S.
Dr. Anthony Fauci, the nation’s top infectious disease expert, has said that immigrants are not driving up the number of COVID-19 cases.
What happens if Title 42 ends?
Homeland Security predicts up to 18,000 daily encounters with migrants — more than double the current average — when Title 42 ends. Anticipating such an increase, the agency has released a plan that includes vaccinating migrants in U.S. Customs and Border Protection custody, adding 600 CBP agents across the southwest border, and increasing the capacity of federal holding centers from 12,000 to 18,000.
Rather than sending migrants directly to Mexico, immigration officials will process migrants arriving and determine if they have a credible asylum case or whether they qualify for any other immigration benefits that allow them to enter the country. If not, immigration agents will hold the migrants and deport them to their home countries.
When DHS secretary Alejandro Mayorkas toured the Mexican border in McAllen this week, border patrol officers said they have already seen pre-pandemic levels of traffic at their post.
The latest federal numbers show migrant arrests are at a 22-year high.
Texas Gov. Greg Abbott says another rise in immigration would put a strain on resources.
"There is no way that local governments or the state would either be able to assimilate, to pay for or deal with that massive migration that we will see," said Abbott.
The Biden administration plans to deal with an expected uptick at the border by adding resources at the southern border, cracking down on human smugglers and vaccinating migrants.
This story will be updated throughout the day.