Judge says CDC can’t end the Title 42 border expulsions

The Centers for Disease Control and Prevention (CDC) cannot move forward with a plan to discontinue pandemic-related emergency rules that allow U.S. border agents to rapidly expel migrants to Mexico or their home countries on public health grounds, a federal judge in Louisiana ruled Friday.

Judge Robert Summerhays of the U.S. District Court in Lafayette, Louisiana, issued a preliminary injunction blocking the Biden administration from ending the restrictions, known as Title 42, on May 23, when the CDC had planned to stop authorizing the border expulsions.

Agreeing with arguments presented by Republican attorneys general who sued the Biden administration, Summerhays, an appointee of former President Donald Trump, said the CDC had improperly terminated Title 42, a public health authority enacted during World War II. 

In his 47-page ruling, Summerhays said the CDC should have allowed the public to comment on Title 42’s termination before finalizing it. “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,” he wrote.

If upheld, Summerhays’ ruling will require the CDC to continue authorizing the border expulsions for some time, since the notice-and-comment process for federal regulations typically takes months to complete. 

Representatives for the CDC did not respond to a request to comment on Friday’s court order. In a statement Friday, the Justice Department announced it planned to appeal Summerhays’ ruling, saying the CDC’s decision to end Title 42 was a “lawful exercise” of its authority.

“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,” the Justice Department said. “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.”

White House press secretary Karine Jean-Pierre said Friday the “authority to set public health policy nationally should rest with the Centers for Disease Control, not with a single district court,” but noted that U.S. border officials would continue the expulsions to comply with the ruling. Officials will also continue to prepare for the “eventual lifting” of Title 42, Jean-Pierre added.

Before his ruling on Friday, 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. 

Since March 2020, migrants have been expelled more than 1.9 million times from the U.S.-Mexico border under Title 42, which denies them an opportunity to request asylum, a right guaranteed by U.S. law and international refugee treaty, government figures show.

The Trump administration argued that Title 42 allows the U.S. to suspend these legal humanitarian obligations during a global pandemic, saying the expulsions of migrants and asylum-seekers were necessary to control the spread of COVID-19 inside border facilities.

The Biden administration employed the same argument for over a year, using Title 42 longer and more often than the Trump administration, carrying out over 1.4 million migrant expulsions, according to an analysis of U.S. Custom and Border Protection (CBP) data.

But in early April, CDC Director Rochelle Walensky said the expulsions were no longer necessary to curb the spread of the coronavirus because of improving pandemic conditions, including higher vaccination rates in the U.S. and Latin America.

Friday’s ruling is a victory for more than 20 states led by Republican attorneys general in Arizona, Louisiana and Missouri who filed the lawsuit challenging the CDC’s decision to terminate Title 42.

The coalition of states argued that an expected increase in the number of migrants being released from U.S. border custody upon Title 42 being halted would harm them financially, citing educational and other social services costs.

While many Democrats and progressive activists praised the decision to end Title 42, the move sparked concern among centrist Democrats, some of whom have joined Republicans in backing a congressional proposal that would require the CDC to continue the expulsions until the national emergency over COVID-19 is lifted.

Apprehensions of migrants along the U.S. southern border have reached record levels over the past year, fueled in part by soaring rates of repeat crossing attempts by some adult migrants trying to reenter the U.S. after being expelled to Mexico under Title 42.

U.S. border agents have stopped migrants 1.3 million times in fiscal year 2022, which started in October, putting that tally on track to exceed the record 1.7 million migrant apprehensions reported in fiscal year 2021, CBP data show.

During an interview with CBS News earlier this week, DHS Secretary Alejandro Mayorkas said the Title 42 expulsions have led some migrants to cross the border  “over and over again” because they do not carry the same penalties, such as multi-year banishments from the U.S., as traditional deportations.

Mayorkas said the “historic numbers” of unlawful crossings along the U.S.-Mexico border could be reduced through criminal prosecutions of repeat crossers, expedited deportations of migrants who do not ask or do not qualify for U.S. humanitarian protection and a rule to speed up asylum case processing.

“We have a number of different efforts underway to ensure that people do not take the dangerous journey, do not place their lives in the hands of exploiting smugglers,” Mayorkas said during his visit to McAllen, Texas, on Tuesday.

Arizona attorney general Mark Brnovich, one of the officials who filed the lawsuit against Title 42’s termination, praised Friday’s ruling. “Title 42 is one of the last tools we have left in our toolbox to stop an even greater flood of illegal immigration into our country,” Brnovich said.

Advocates for asylum-seekers criticized the court order, calling Title 42 a Trump-era relic designed to block migrants fleeing violence from requesting U.S. humanitarian protection.

“Hypocritically, the States that brought this lawsuit seemingly care about COVID restrictions only when they involve asylum seekers and are using the case as an obvious attempt to enact immigration restrictions,” said Lee Gelernt, an American Civil Liberties Union lawyer challenging Title 42 in a separate court case.

Camilo Montoya-Galvez

Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.