Judge puts hold on plan to lift Title 42 border expulsion policy

Republican-led states filed a lawsuit to stop the Biden administration move

A Border Patrol agent drives across the Johnson Ranch near Columbus, N.M., last year. (Bill Clark/CQ Roll Call file photo)
A Border Patrol agent drives across the Johnson Ranch near Columbus, N.M., last year. (Bill Clark/CQ Roll Call file photo)
Posted May 20, 2022 at 5:19pm, Updated at 9:05pm

A federal judge on Friday ordered the Biden administration to maintain, for now, pandemic-related restrictions that have largely closed the borders to asylum-seekers for more than two years.

The 47-page order from Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana halts the Biden administration’s plans to lift the public health directive known as Title 42 on Monday.

Summerhays ruled that the policy should be maintained nationwide while two dozen Republican-led states pursue a lawsuit that challenges the Biden administration decision. The judge found the states had proved they were likely to prevail on their claims that the Centers for Disease Control and Prevention did not follow the proper steps when it issued its memo to terminate the Title 42 policy.

And Summerhays wrote that, if the Title 42 policy were lifted, the states would face unrecoverable increases in costs for health care reimbursements and education services for immigrants.

“The record reflects that — based on the government's own predictions — that the Termination Order will result in an increase in daily border crossings and that this increase could be as large as a three-fold increase to 18,000 daily border crossings,” Summerhays wrote.

The Biden administration said in a statement that it disagrees with the decision and the Justice Department will appeal. "The authority to set public health policy nationally should rest with the Centers for Disease Control, not with a single district court,'' White House Press Secretary Karine Jean-Pierre said.

The ruling, while not unanticipated, could lift some pressure off Democrats to pass legislation or additional funding to address security shortcomings at the border. But with midterm elections approaching, Republicans still are expected to highlight the administration’s handling of high migration levels.

The planned rescission sparked intense debate and division in recent weeks on Capitol Hill. Republicans and some Democrats, including those facing tough midterm races this year, have criticized the administration’s handling of the border and questioned its preparedness to manage an increase in migration when the Title 42 directive is lifted.

The policy, issued under a decades-old public health law, allows border agents to rapidly “expel” migrants who cross the border without considering their claims for asylum or other protection. U.S. Customs and Border Protection has logged more than 1.8 million Title 42 expulsions — which include people expelled multiple times — since March 2020, according to most recent government data.

CDC Director Rochelle Walensky, in an order last month, wrote the policy was “no longer needed” because of current public health conditions and “an increased availability of tools to fight COVID-19 (such as highly effective vaccines and therapeutics).”

The case is the latest instance where the federal judiciary has stepped in on immigration in the absence of congressional action on the topic.

The state of Texas alone has filed nearly a dozen legal challenges to the Biden administration’s immigration policies.

Following one such suit by the Lone Star State, the Supreme Court is also currently considering if the administration may rescind a Trump-era policy that required migrants to wait in Mexico for decisions in their U.S. immigration cases.

Taken together, eventual rulings in those two cases could force sweeping changes to how the administration manages the border.

The court actions also create operational uncertainty for an administration constantly tugged in different directions by the courts, said Theresa Cardinal Brown, a former Department of Homeland Security official who now serves as managing director of immigration and cross-border policy at the Bipartisan Policy Center.

“The uncertainty means they can’t plan, so they just are always and completely in reactive mode,” Brown said, speaking earlier this month before Summerhays’ ruling.

Government officials previewed these operational difficulties ahead of the court’s ruling as well. In a court filing Wednesday, lawyers for the federal government had asked Summerhays to issue his rule by May 20, ahead of the scheduled rescission date, to “help to avoid uncertainty that could pose operational challenges.”