Court set to rule on planned end to border expulsion policy

The prospect of decision that would keep the Title 42 directive in place is rarely mentioned on Capitol Hill

GOP Sens. Rob Portman, left, and John Thune arrive at the U.S. Capitol last month for a news conference on keeping in place the Title 42 policy.
 (Tom Williams/CQ Roll Call)
GOP Sens. Rob Portman, left, and John Thune arrive at the U.S. Capitol last month for a news conference on keeping in place the Title 42 policy. (Tom Williams/CQ Roll Call)
Posted May 12, 2022 at 5:08pm

A federal judge in Louisiana appears poised to step in as early as Friday to block the Biden administration from ending pandemic-related asylum restrictions later this month, something Republicans and some Democrats have pushed to do in Congress.

But any forthcoming ruling on the public health directive known as Title 42 may do little to quell debate about it on Capitol Hill, where Republicans are ready to use border management as a wedge issue ahead of midterm elections in November.

Lawyers for the Justice Department are scheduled to appear in court Friday in Lafayette, La., for a hearing on the plans to end the Title 42 directive on May 23. Officials from 21 Republican-led states asked a federal court to rule before then to keep it in place during a court fight, and the judge’s prior order in the case indicates he is leaning that way.

The directive has allowed border agents to rapidly “expel” more than a million migrants who crossed the U.S.-Mexico border over the past two years without considering their asylum claims.

The plan to lift it has divided the Democratic caucus, with some more vulnerable senators and those in border states voicing concerns about an anticipated increase in migration once the controls are lifted.

Over the past two months, that has allowed Republicans to insist on a vote on an amendment to preserve the Title 42 policy, which stalled a separate COVID-19 aid package. A bipartisan group of senators has proposed legislation that would do the same.

Yet the prospect of an impending court ruling that would keep the Title 42 policy in place is rarely mentioned on Capitol Hill despite frequent news conferences and hearings focused on the border and high levels of migration.

In theory, a vote on an amendment preserving the border expulsion policy would be duplicative if a federal judge has already delayed the policy’s termination. That could also lift some pressure off Democrats to take a position on the issue.

“Congress has been saved from making policy for a very long time because of court intervention. And that is short-term helpful to them,” said Muzaffar Chishti, director of the nonpartisan Migration Policy Institute’s New York office. “Long term, it is really costing the country.”

Here to stay

Yet, in an election season where Republicans have said border security will be a top priority if they retake control of Congress, a push for a Title 42 vote seems here to stay.

Senate Democratic Whip Richard J. Durbin of Illinois, when asked Thursday if a court ruling could resolve concerns raised by those pushing for a vote on the Title 42 policy, said, “I would suspect we’re going to face a Title 42 vote at some point.”

Sen. Bob Menendez, D-N.J., a prominent voice in immigration talks, said Republican political calculus would determine how Congress reacts to any injunction to prevent the Biden administration from lifting the border controls.

“If they want to insist on codifying it into law, the court decision won’t be enough for them because they want the issue more than they want the solution,” Menendez said Tuesday.

Several Senate Republicans have already signaled they will continue to push on Title 42. Texas Republican Sen. John Cornyn, who has been involved in bipartisan discussions on potential immigration bills that could pass the Senate this year, said he would still like to see Congress pass legislation addressing the border even if the court blocks the planned rescission.

Cornyn noted that the border directive, even if preserved by a court order, is inherently a temporary public health measure. “I still think we need to act, because we know Title 42 is going away at some point,” Cornyn said Thursday.

Sen. Thom Tillis of North Carolina, another Republican involved in immigration talks, agreed. A court injunction “may provide more time, but it doesn’t end the issue,” Tillis said.

Sergio Gonzales, executive director of Immigration Hub, who previously worked on immigration policy for then-Sen. Kamala Harris, said continued conversations around Title 42, even while the Biden administration’s plans are held up in court, would show the directive has been made into a political issue, not a policy one.

“Obviously, Republicans are doing their utmost to make this a political issue. They are interested in creating headlines and headaches for Democrats,” Gonzales said.

Any court injunction might not even be enough to satisfy Senate Democrats who have pushed the administration to better prepare to manage higher numbers of asylum-seekers crossing the border.

Arizona Democratic Sen. Mark Kelly, who has joined bipartisan legislation to extend the Title 42 directive, on Tuesday said he would still like to see Congress vote on legislation tackling border operations.

Kelly has signed on to bipartisan legislation put forth by Sens. James Lankford, R-Okla., and Kyrsten Sinema, D-Ariz., that would prevent the administration from rescinding the border expulsion policy until 60 days after the surgeon general terminates the public health emergency. It would also require the Department of Homeland Security to submit to Congress plans on how the government will handle any resultant increase in migration.

Sen. Raphael Warnock, D-Ga., who has previously voiced concerns about the administration’s preparedness for a post-Title 42 migration influx, on Thursday said he would need to see the exact contours of the court’s ruling before deciding if he would like to see legislative action on the issue.

“The main thing I want to make sure is that we don’t make the situation at the border worse, which is why I’ve raised concerns,” Warnock said.

Court hearing

In their lawsuit, the states painted the termination as an abrupt end to a key migration management tool that flouted administration requirements. The Justice Department has countered that the directive was always meant to be a temporary public health measure and defended the Centers for Disease Control and Prevention’s decision to end it.

Judge Robert Summerhays, a Donald Trump appointee, already indicated in an earlier order that he’s likely to rule against the Biden administration.

“While we strongly disagree with the continuation of this horrific and counterproductive policy, it will almost certainly remain in place for the foreseeable future due to ongoing litigation,” Aaron Reichlin-Melnick, senior policy counsel for the American Immigration Council, told reporters Tuesday.

However, it still remains to be seen exactly how Summerhays rules. And if he does temporarily halt the Biden administration’s plans, the order could apply nationwide, or only to the border states that sued: Arizona and Texas. That more limited order would allow the Title 42 directive to lift in California and New Mexico, as some advocates have requested.

“We’re in a place where we’re waiting on a Louisiana court to make a decision that would have such a fundamental impact on the lives of thousands of people who are stuck outside our borders in very precarious circumstances, and who have legal and human rights to apply for asylum,” said Sirine Shebaya, executive director of the National Immigration Project of the National Lawyers Guild.

Caroline Simon contributed to this report.