'Arbitrary and Capricious': Judge Blocks U.S. From Expelling Migrants Under COVID-Era Title 42 Order

The judge granted the Biden administration a stay, which will keep the policy in place through late December.

Yesterday, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia vacated a pandemic-era public health order that has allowed border officials under both the Trump and Biden administrations to expedite the expulsion of migrants seeking asylum in the United States. Sullivan ruled that the order wasn't properly enacted and noted that the government's decision to ignore the potential harms of the policy "was arbitrary and capricious."

Early in the COVID-19 pandemic, Trump administration officials invoked the Public Health Service Act, part of Title 42 of the U.S. Code, which authorizes federal officials to control the interstate and international spread of diseases. In late March 2020, the Centers for Disease Control and Prevention (CDC) issued a rule suspending the "introduction" of people from "designated countries or places…in the interest of public health," even if the communicable disease to be mitigated "has already been introduced, transmitted, or is spreading within the United States."

Former CDC Director Robert Redfield extended the Title 42 order for one month and then indefinitely. The Biden administration sometimes fought to keep the order in place and then tried to rescind it, only to be challenged by a federal judge. Though the order applied to people crossing into the U.S. from Canada or Mexico, Title 42 expulsions have overwhelmingly taken place at the U.S.-Mexico border and have primarily affected Mexican and Central American migrants. Migrants expelled under Title 42 aren't allowed the opportunity to plead their asylum claims through processes outlined by longstanding immigration law.

Between March 2020 and August 2022, U.S. border officials carried out over 2 million Title 42 migrant expulsions. Though public health officials argued the order would help prevent the spread of COVID-19 on American soil, a host of medical professionals have since criticized the "junk science" behind that claim. Other critics point to questionable political motives underlying the order. Then–Vice President Mike Pence reportedly pressed Redfield to implement the border-sealing policy despite the CDC chief's initial refusal.

Sullivan found that the CDC failed to apply a standard it had established in 2017 requiring it to impose the "least restrictive means necessary to prevent the spread of disease" in all situations that involve "quarantine, isolation, or other public health measures." It also failed "to acknowledge and explain its departure from past practice." Further, the CDC failed to consider the availability of effective therapeutics and vaccines as it assessed ongoing public health risks, Sullivan ruled.

"It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals," wrote Sullivan, "particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor." Though Sullivan held that the CDC "has considerable flexibility in carrying out its responsibility," he noted that "its decision to ignore that harm could be caused by issuing its Title 42 orders was arbitrary and capricious."

The Biden administration has leaned into Title 42 as a border management tool to respond to border crossings. However, doing away with the order could eliminate some nasty unintended consequences. Because Title 42 is a health measure, immigration officials couldn't impose reentry penalties on the migrants they expelled—and repeat crossings spiked. Excluding repeats, the number of border apprehensions resembled pre-pandemic levels. With no orderly means of requesting asylum—such as processing at ports of entry—migrants congregated around the border, leading to scenes that signaled chaos. Contrary to what Title 42 proponents may say, the policy made migrant arrivals less predictable and manageable.

The Biden administration requested a five-week stay to Sullivan's order, which would keep the Title 42 order in place through late December. Sullivan granted it "WITH GREAT RELUCTANCE." As the policy is phased out, federal officials must restore orderly means of asylum-seeking and build out opportunities for temporary work visas and economic migration—both of which will reduce illegal migration.