(CN) — The Biden administration cannot terminate a Covid-related public health policy that has been used to quickly expel millions of undocumented immigrants, a federal judge ruled Friday.
The Public Health Services Act, or Title 42, empowers the Centers for Disease Control and Prevention to limit immigration to impede the spread of serious communicable diseases.
Since March 2020, the Department of Homeland Security has invoked Title 42 more than 1.7 million times to expel immigrants to Mexico, their home countries and, in rare cases, to other countries which they have no ties to, though under Biden it has not applied the policy to children entering the country without parents or guardians.
On April 1, CDC Director Rochelle Walensky announced she had decided to terminate the policy, effective May 23, because of the drop in Covid-cases and hospitalizations in the U.S. since the Omicron surge last winter, the increased number of people around the world who are fully vaccinated against the respiratory illness and wider availability of Covid treatments.
Two days later, Arizona, Louisiana and Missouri, all led by Republicans, sued the Biden administration over the rescission decision. Shortly thereafter, an amended complaint added 18 more red states as plaintiffs. Three more states joined in a second amended complaint filed May 5.
U.S. District Judge Robert Summerhays, a Trump appointee in Lafayette, Louisiana, initially granted the states a temporary restraining order to keep Title 42 in place. He ruled in their favor again Friday, approving their request for a nationwide preliminary injunction.
Summerhays found the administration violated the Administrative Procedure Act by not letting the public comment on its decision to revoke the policy.
He rejected Walensky’s statement the termination order is not a rule subject to notice and comment under the APA based on the “good cause” and “foreign affairs” exceptions.
Walensky said in light of the policy’s disruption of ordinary immigration processing in which noncitizens can apply for asylum and present evidence to immigration judges to establish they have a credible fear of returning to their home countries, or apply for withholding of removal, or protection under the Convention Against Torture, there is good cause not to delay terminating Title 42 past May 23.
“Simply put, the CDC has not explained how the present circumstances prevented the CDC from issuing the termination order through the required notice and comment process under the APA,” Summerhays wrote in a 47-page order.
“Accordingly, the court concludes that the termination order is not exempt from the APA's notice-and-comment process based on the ‘good cause’ exception,” he added.
As for the foreign affairs exception, Walensky’s termination order states because it involves ongoing discussions with Canada and Mexico and other countries regarding immigration and how to control Covid-19 transmission over shared borders, it directly involves a foreign affairs function of the U.S. government, so notice and comment are not required.
But Summerhays determined that rationale was too superficial.
He said he could not consider two declarations subsequently submitted by federal officials expanding on why Title 42 termination implicates U.S. foreign policy because “judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action.’”
Summerhays, a former bankruptcy judge, also credited the red states’ arguments — based on a prediction DHS Secretary Alejandro Mayorkas made on May 1 — that lifting Title 42 could increase daily border crossings to as many as 18,000 per day.
“The record also includes evidence supporting the plaintiff states' position that such an increase in border crossings will increase their costs for healthcare reimbursements and education services. These costs are not recoverable,” Summerhays wrote.
The White House said it disagrees with the order and will appeal.
“The authority to set public health policy nationally should rest with the Centers for Disease Control, not with a single district court. However, in compliance with the court’s injunction, the Biden Administration will continue to enforce the CDC’s 2020 Title 42 public health authority pending the appeal,” it said in a statement.
Meanwhile, Arizona Attorney General Mark Brnovich praised the order.
“In April 2022, U.S. Customs and Border Protection (CBP) reported there were 96,908 expulsions under Title 42. Without this essential tool in place, our already broken borders will descend further into unmitigated catastrophe as the only remaining safety valve is removed,” he said in a press release.
Texas has filed a separate federal lawsuit making the same arguments for keeping Title 42 in place as the 24 red states have in their litigation.
Shortly before Summerhays issued his order Friday, Republican Governor Greg Abbott announced the Texas Department of Public Safety, Texas Military Department and Texas Division of Emergency Management had activated a Joint Border Security Operations Center to its highest level of alert in preparation for an uptick in people crossing into Texas from Mexico without papers with the end of Title 42 expulsions.
Abbott launched Operation Lone Star in March 2021, deploying thousands of Texas state troopers and National Guard troops to South Texas to help Border Patrol agents apprehend undocumented immigrants. State troopers have also arrested dozens of immigrants on trespassing charges.
Abbott claims Biden’s refusal to secure the border has resulted in record levels of paperless immigrants entering the United States, despite the fact Biden did not move to end Title 42 until the 16th month of his presidency.
Buoyed by Summerhays’ order, the Republican governor, who is running for a third term, amped up his rhetoric Friday.
“Another federal court announced today what we have known all along: President Biden is ignoring federal law with his open border policies. While todays’ court ruling is a positive development, hundreds of thousands of illegal immigrants remain at our southern border ready to flood into Texas,” Abbott tweeted.
He said he will continue the deployment of state law enforcement and National Guard and the activation of the state’s Joint Border Security Operations Center.
At the urging of then-President Donald Trump, the CDC implemented Title 42 in March 2020 and President Joe Biden’s decision not to immediately lift it provoked outrage from immigrant advocates who claim it denies people due process and access to the U.S. asylum system in contravention of international accords.
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