The real reason a judge stopped the Biden administration from ending Title 42 expulsions

On May 20, a federal district court judge issued a nationwide injunction ordering the Biden administration not to terminate its Title 42 order, which requires U.S. Customs and Border Protection (CBP) to process illegal land border crossers promptly (15 minutes in an outdoor setting) — without asylum screening or other Title 8 immigration processes — and expel them back to Mexico through the closest port of entry.

Nearly 2 million migrants have been expelled under the order since it was instituted in 2020 as part of former President Trump’s pandemic response.

The administration disagrees and intends to appeal the decision to a higher court. According to the administration, “The authority to set public health policy nationally should rest with the Centers for Disease Control [CDC], not with a single district court.” 

I agree that national public health policies should be set by the CDC, not by district court judges. But that’s not what happened in this case. 

The Title 42 order was issued to reduce the number of migrants held in congregate settings at ports of entry and Border Patrol stations because of the risk it posed of introducing, transmitting, and spreading COVID-19 in the United States. 

CDC terminated the Title 42 order on April 1, 2022, because less burdensome measures are now available to mitigate those risks. The termination, however, wasn’t scheduled to be effective until May 23 because DHS needed time to institute operational plans for implementing the termination order and to establish additional COVID-19 mitigation measures.

Notice-and-comment requirements

The CDC did not comply with the notice-and-comment requirements of the Administrative Procedure Act (APA) when it terminated the Title 42 order. According to the CDC, its termination order was not a rule. Moreover, even if it were a rule, it would qualify for the “good cause” and “foreign affairs” exceptions to those requirements.

The CDC claims that there is good cause to dispense with the APA requirements because the Title 42 order is restricting asylum applications and other immigration processes, and provisions in Title 42 state that such orders should last no longer than necessary to protect public health. It would be impracticable and contrary to public interest and immigration laws, the administration argued, to delay the effective date of the termination beyond May 23.

As to the foreign affairs exception, the CDC claims that the Title 42 order concerns ongoing discussions with Canada, Mexico, and other countries regarding immigration and how best to control COVID-19 transmission over shared borders; consequently, it directly involves a foreign affairs function of the United States.

Twenty-four states filed a suit seeking to enjoin the CDC’s termination. The states contend that termination would cause a major increase in undocumented immigrants coming into their states which, among other things, would increase their law enforcement and healthcare costs.

They also claim that the termination order violates the APA’s notice-and-comment requirements.

Judge’s decision

The judge decided the administration had not advanced its argument that its termination order is not a rule. In any event, the termination is a “rule” because it will end the Title 8 immigration restrictions and resume normal immigration enforcement operations. Thus, according to the judge, it is an agency statement of general or particular applicability and future effect “designed to implement, interpret, or prescribe law or policy.”

The CDC’s justification for invoking the “good cause” exception, the judge determined, is flawed for at least four reasons.

First, the judge said, its rationale suggests that the CDC had insufficient time to undergo the APA’s notice-and-comment process. This ignores the fact that the CDC was ordered to consider the need to continue its Title 42 order by an Executive Order issued more than 14 months before it terminated the Title 42 order.

Second, the CDC provided time for DHS to establish operational plans to implement the termination, which acknowledges that the termination will impact DHS’s immigration enforcement operations. 

Third, the judge said the CDC’s rationale is overbroad in that it would apply to every rule issued under Title 42, regardless of the circumstances.

Fourth, an agency’s response to a dangerous and largely unknown contagious disease may justify emergency action that dispenses with the normal rulemaking process, but the CDC has not explained how the present circumstances prevented it from issuing its termination order through the required notice and comment process.

The termination order only includes one sentence supporting its position that the foreign affairs exception applies to its termination order: The CDC simply states that it “concerns ongoing discussions with Canada, Mexico, and other countries regarding immigration and how best to control COVID-19 transmission over shared borders.”

The administration has submitted two declarations that expand upon its foreign affairs rationale during the course of this litigation; however, judicial review of the termination rule is limited to the information included in the termination order, which doesn’t provide a sufficient rationale.  Subsequently submitted rationales cannot be considered.

The judge concluded the states have established a substantial likelihood of success in this suit based on the CDC’s failure to comply with the rulemaking requirements of the APA. Accordingly, he granted their request for an injunction halting the implementation of the Title 42 order.

Is he right? That will be determined by the appellate court that reviews the administration’s appeal.

In the meantime, the administration should stop making the misleading claim that the district court judge is usurping the CDC’s authority to set public health policies. He is simply requiring the CDC to issue its rulemaking policies lawfully by complying with the APA’s notice-and-comment requirements.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at https://nolanrappaport.blogspot.com