The Biden administration is reportedly finalizing its plans in response to the anticipated end of Trump-era border restrictions based on Title 42.
Pres. Biden’s plans could be announced within the coming days, pending further action from the Supreme Court. Chief Justice John Roberts has issued a temporary hold on the order lifting the policy in response to an emergency appeal by the leaders of several GOP-led states.
What is Title 42?
“Title 42” in the recent political context refers to 42 U.S. Code § 265 — part of Title 42 of the United States Code, enacted in the Public Health Service Act of 1944, which generally deals with public health and welfare. The provision allows the government to take measures to prevent the spread of communicable diseases from foreign countries into the United States or from one state to another. Its text states:
Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.
(July 1, 1944, ch. 373, title III, § 362, 58 Stat. 704.)
During the COVID-19 pandemic, the Trump administration invoked 42 U.S. Code § 265 to seal the land borders with Canada and Mexico to migrants seeking asylum. The policy allowed officials to quickly expel migrants — including asylum applicants — at the US-Mexico border.
Under the policy, individuals from certain countries in Central America and Mexico, as well as Cuba and Nicaragua, have been expelled to Mexico or their home countries without being given an opportunity to seek asylum or contest their expulsion. There are limited exceptions for individuals who claim a fear of torture in the country to which they will be expelled, but the exceptions are rare and difficult to obtain. The policy has been widely criticized for its impact on asylum seekers and for its lack of due process. It has also led to the detention and expulsion of thousands of people, including families with young children and unaccompanied minors.
The policy was implemented in March 2020 and has been used more than 2.4 million times to expel migrants since its implementation. It has faced criticism from immigration advocates and medical experts who argue it has not been effective in preventing the spread of COVID-19.
Decision in Federal District Court
Just a few weeks ago, Judge Emmet Sullivan at the United States District Court in Washington, D.C. vacated the Title 42 policy, stating it violates the Administrative Procedures Act (APA). The judge found that the policy was arbitrary and capricious and that it violated standards of the APA because the Centers for Disease Control and Prevention (CDC) “failed to adequately consider alternatives and the policy did not rationally serve its stated purpose.”
The judge stated the CDC failed to consider alternative approaches, such as letting migrants self-quarantine in the homes of US-based friends, family, or shelters. The agency, he said, should have reexamined its approach when vaccines and tests became widely available. The judge also concluded that the policy did not rationally serve its purpose, given that COVID-19 was already widespread throughout the United States when the policy was rolled out.
Judge Sullivan eventually granted a stay of the opinion with “great reluctance” — which means the Trump-era policy remains in effect until midnight on December 21st.
Judge Sullivan’s order can be found here.
Supreme Court Hold
The Supreme Court meanwhile has granted a temporary hold on the lifting of the pandemic-era border restrictions based on Title 42. The restrictions were set to be lifted on December 21st, but the court issued the hold in response to an emergency appeal by a group of Republican attorneys general from 19 states.
The hold means that the policy will remain in effect until the court makes a final decision on the emergency application.
The Supreme Court’s order can be found here.
What would it mean if the Title 42 restrictions are lifted?
If the Biden administration lifts the Title 42 restrictions, it would mean that refugees and other migrants would no longer be immediately expelled from the United States at the southern border under the guise of COVID-19 precautions. Lifting the restrictions would mean they can continue to potentially seek asylum or other forms of protection under U.S. law.
That said, it is important to note that the lifting of Title 42 restrictions does not guarantee refugees and other migrants will be able to successfully obtain asylum or other forms of protection. Applicants will still need to meet asylum eligibility requirements. Lifting of the Title 42 restrictions does not mean that refugees and other migrants would no longer be subject to other barriers or challenges in seeking protection in the United States. But once the Title 42 policy is successfully vacated, asylum and refugee seekers should at the minimum expect a more definite resolution to their applications.