Court Won't Let CDC End Migrant Expulsion Order Just Yet
Plus: Book bans come for Barnes & Noble, a blow to SEC enforcement power, and more...
Will the Title 42 expulsion order ever end? It's hard to keep track of all the recent twists involving Title 42, a public health statute used to expel would-be refugees since the start of the COVID-19 pandemic. The latest development: A judge says the Biden administration must keep rapidly rejecting migrants on public health grounds, for now.
The U.S. Centers for Disease Control and Prevention (CDC) was set to stop authorizing border explosions under Title 42 on Monday. But Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana issued a preliminary injunction against this plan, per the request of Republican attorneys general from 21 states.
Summerhays doesn't doubt that the CDC ultimately has the authority to stop expelling migrants under the public health order, but he believes the agency did not allow for a proper public comment period before doing so. "The CDC has not explained how the present circumstances prevented the CDC from issuing the Termination Order through the required notice and comment process," he wrote in his recent ruling.
The notice and comment process typically takes months—which means that if Summerhays' order stands, the U.S. will have to continue to invoke Title 42 to expel migrants. But the U.S. Department of Justice (DOJ) says it will appeal.
"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," DOJ said in a statement. "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."
Title 42 of the Public Health Safety Act was first invoked as a means to keep out migrants by the Trump administration, back in March 2020. And—despite campaign promises to stop Trump-era immigration policies—President Joe Biden continued to extend this policy.
Last September, a federal court said the Biden administration could not keep doing so when it came to migrant families and issued a preliminary injunction to stop this. The administration appealed.
In March, the U.S. Court of Appeals for the District of Columbia Circuit upheld the lower court's preliminary injunction in part, saying that the CDC didn't have the authority to require the expulsion of refugee seekers back to countries where they were likely to be tortured or persecuted based on their "race, religion, nationality, membership in a particular social group, or political opinion."
"The case is enormously important because of the vast number of migrants expelled under the CDC order (over 1 million and counting), and because of the broader implications for the power of the executive branch over immigration policy," wrote George Mason University law professor and Volokh Conspiracy blogger Ilya Somin in March. "If the government had prevailed on all points in this case, CDC would have virtually unlimited power to expel any migrants from anywhere, anytime it wants."
Under the D.C. Circuit Court's ruling, "many—perhaps even most—of the people currently targeted for Title 42 expulsions cannot be expelled immediately," noted Somin.
Meanwhile, the Biden administration had exempted unaccompanied minors from Title 42 expulsion. But Texas sued, and the U.S. District Court for the Northern District of Texas ruled in the state's favor.
In response, the CDC announced that it was "terminating with respect to unaccompanied noncitizen children an Order under Title 42 suspending the right to introduce certain persons into the United States. In effect, this means that unaccompanied noncitizen children will not be expelled from the United States under CDC's order."
Then, in April, the CDC said that it would lift the Title 42 expulsion order altogether.
"[The] CDC has determined that a suspension of the right to introduce such covered noncitizens is no longer necessary to protect U.S. citizens, U.S. nationals, lawful permanent residents, personnel and noncitizens at the ports of entry (POE) and U.S. Border Patrol stations, and destination communities in the United States," the agency stated.
But the attorneys general of Arizona, Louisiana, and Missouri filed a suit to stop this, saying ending the expulsion order would lead to "unmitigated chaos and catastrophe."
The suit was later joined by the attorneys general of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Utah, West Virginia, and Wyoming.
Before his latest ruling, "Summerhays had already issued a temporary restraining order barring the U.S. Department of Homeland Security (DHS) from starting to phase out Title 42 before the May 23 termination date," notes CBS News.
FREE MINDS
Lawsuit seeks court order saying Barnes & Noble must restrict "obscene" books. Republican politicians are trying to stop Barnes & Noble from selling the memoir Gender Queer and the fantasy novel A Court of Mist and Fury to minors without parental consent. The lawsuit was filed by lawyer and Republican member of the Virginia House of Delegates Tim Anderson on behalf of Tommy Altman, who is running for U.S. Congress.
Anderson and Altman are asking the Virginia Beach Circuit Court for "a restraining order against Barnes and Noble and Virginia Beach Schools to enjoin them from selling or loaning these books to minors without parent consent," noted Anderson last week in a Facebook post, highlighting passages with sexual themes in both books.
Anderson's post also seemed to encourage copycat lawsuits:
We are in a major fight. Suits like this can be filed all over Virginia. There are dozens of books. Hundreds of schools.
In a statement to CBS News, Barnes & Noble said that the chain carries "thousands of books whose subject matter some may find offensive" and asked "that our customers respect our responsibility to offer this breadth of reading materials, and respect also that, while they chose not to purchase many of these themselves, they may be of interest to others."
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A federal court ruling against the Securities and Exchange Commission (SEC) seeks "to re-establish the proper understanding of the Constitution's separation of powers," as the Wall Street Journal's editorial board put it. The ruling comes from a divided three-judge panel of the U.S. Court of Appeals for the 5th Circuit and was penned by Judge Jennifer Walker Elrod.
The case (Jarkesy v. Securities and Exchange Commission) involves hedge fund founder George Jarkesy and his business partner, who were both charged by the SEC with securities fraud. The case was heard by an SEC administrative law judge, who found Jarkesy and his partner guilty, ordered them to pay a fine, and said Jarkesy could no longer work in the securities industry.
At the heart of the case is whether this sort of administrative law enforcement is OK.
"Merits of the case aside, the constitutional problem is that the SEC acted as prosecutor, judge and jury," states the Wall Street Journal's editorial board. "The Dodd-Frank Act lets the SEC decide whether to bring charges in its own tribunal or federal court. The agency usually chooses the former, as do other agencies such as the Federal Trade Commission."
The court found that this deprived Jarkesy and his partner "of their constitutional right to a jury trial." In addition, it held that "Congress unconstitutionally delegated legislative power to the SEC by failing to provide it with an intelligible principle by which to exercise the delegated power."
"All of this is a blow to the SEC, but it's a blessing for the proper understanding of the Constitution," suggests the editorial board. "The ruling applies only to the SEC, but it could encourage similar challenges against other independent agencies."
QUICK HITS
A story that's not getting enough national attention: Here in the Myrtle Beach, S.C. area for the past 13 years, the FBI and local law enforcement officials left the impression that a white girl on vacation was abducted by a 16-year-old black dude who did evil things to her. 1/
— @ijbailey (@ijbailey) May 23, 2022
• "Every day, though, we see more evidence of medical realities that are enshrined in Roe and Casey but are absent from Alito's argument," writes Chavi Eve Karkowsky, a maternal-fetal medicine specialist and author of High Risk: Stories of Pregnancy, Birth, and the Unexpected. "Namely: The early phases of pregnancy are not the same as the later phases; early abortions are different from late abortions."
• The Supreme Court concurred with Arizona prosecutors who said that "innocence isn't enough" to overturn a conviction.
Want to know more about the likely innocent man that the Supreme Court just gave Arizona permission to execute? @LilianaSegura has been reporting on his case for years. Start here, then read her subsequent reports as the case moved through the courts.https://t.co/06Knffmt4Z
— Radley Balko (@radleybalko) May 23, 2022
• "The liberal obsession with disinformation is not helping," says New York magazine.
• Freddie deBoer takes issue with "the gentrification of disability." This dynamic means things like autism and mental illness become "seen as an identity marker that is useful for social positioning among the chattering class" and thus writing about these issues focuses on the most high-functioning cases, to the exclusion of tales that don't fit the neurodiversity-is-always-beautiful mold.
• Reason staffers are finalists for eight L.A. Press Club awards, in categories including investigative reporting ("The $2 Drug Test Keeping Inmates in Solitary"), national/government reporting ("The Bipartisan Antitrust Crusade Against Big Tech"), sports commentary ("How Government Devastated Minor League Baseball"), and investigative reporting ("Los Angeles Is Squandering $1.2 Billion While Homeless Face a 'Spiral of Death'").
