The Volokh Conspiracy

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Biden May End Title 42 "Public Health" Expulsions of Migrants [Updated]

The policy caused immense suffering, in exchange for meager public health benefits, if any at all. Its history undercuts the case for granting broad powers and judicial deference to the CDC.


The Washington Post reports that the Biden administration may be planning to end Title 42 "public health" expulsions migrants at the southern border:

The Biden administration is planning to lift the Title 42 border controls that authorities have relied upon during the past two years of the pandemic, but the restrictions will not end immediately, according to two officials familiar with the preparations.

The administration is expanding border facilities and migrant processing capacity with the goal of fully lifting the pandemic restrictions in May, according to one of the officials, who spoke on the condition of anonymity because they were not authorized to discuss the plans publicly. Biden officials have insisted they will defer to the Centers for Disease Control and Prevention, which is completing a review of the Title 42 restrictions and said it will announce its determination this week.

The Trump administration implemented the Title 42 order in March 2020, characterizing the measure as an emergency safeguard to prevent the spread of infection inside detention cells, border stations and other crowded settings. The order has allowed border authorities to bypass normal immigration screening procedures and rapidly expel border crossers to their home countries or to Mexico without affording them a chance to seek humanitarian protection under U.S. law.

U.S. Customs and Border Protection has carried out more than 1.7 million of these "expulsions" over the past 24 months, the majority under President Biden.

The Title 42 expulsions have caused immense suffering, while doing little or nothing to stop the spread of Covid-19. As I explain in this article (pp. 439-40), the expulsions were begun by Trump and perpetuated by Biden for primarily political reasons, over the opposition of public health experts at the CDC and elsewhere.For many of those expelled, the Title 42 policy has resulted in terrible suffering, including "death, torture, and rape."

While it's a good thing that Biden may finally end the expulsions, it's reprehensible that the White House continues to hide behind the skirts of the CDC, perhaps hoping to convey the impression that they're just "following the science." In reality, this was a White House-driven and politics-driven policy from first to last.

More generally, the CDC's record during the pandemic undercuts the case for giving that agency vast discretionary authority and broad judicial deference when it exercises it, because it can be relied on to base policy purely on "objective" scientific considerations. Again and again, the agency has proven susceptible to political pressure from both left and right. That happened with the Title 42 expulsions, the eviction moratorium eventually invalidated by the Supreme Court, the transportation mask mandate, school mask mandates, and much else, besides.

Even if government agencies deserve special deference when they enact policy based on specialized scientific expertise, such disinterested expertise has been notable primarily by its absence, when it comes to CDC's role in Covid pandemic policy. Both Trump and Biden have used the agency's veneer of scientific expertise as a cover for dubious policies actually enacted for other reasons. Courts and others should take note.

Earlier this month, the US Court of Appeals for the DC Circuit partly invalidated the Title 42 policy, ruling that the CDC had the authority to expel migrants, but not to countries where they are likely to face persecution or torture. In my view, the Court should have invalidated the entire policy, as going beyond the authority delegated to the CDC by Congress, and raising "major question" and nondelegation problems. I cover these issues in detail in a forthcoming article about the case and its parallels with the earlier eviction moratorium litigation.

But, legal questions aside, Trump should never have instituted this terrible policy in the first place, and Biden should never have perpetuated it. Even if legal, it was pointless, cruel, and unjust.

UPDATE: The administration has now announced that the Title 42 expulsions will end on May 23.