Biden strategy in court on Title 42 reflects effort to preserve agency power, observers say
Louisiana federal judge blocked the Biden administration’s plan to end a Trump-era policy used to expel migrants at the border because of the coronavirus pandemic, the Biden administration appealed a D.C. federal judge’s order telling it to end that policy this month.
Human rights and immigration advocates cheered Biden’s election in 2020 partly because they believed it would mean the end of much of former President Donald Trump’s immigration policy.
But, then the March 2020 policy known as Title 42 was left in place for more than a year into the Biden administration. In April, the Centers for Disease Control and Prevention announced it was no longer necessary to control the spread of COVID-19 through Title 42 due to easy access to vaccinations and other virus-fighting measures. A month later, a Louisiana federal court blocked the administration from ending the policy.
Border Patrol braces for rush at US-Mexico border. Here’s what we know.
The administration is trying to take a longer-term approach to preserve the authority of executive agencies and so that the CDC can fight future pandemics, several experts in constitutional law, public health and immigration told USA TODAY.
This is evident by the administration’s decision to not seek a stay pending appeal, said Jeremy McKinney, president of the American Immigration Lawyers Association.
“The Biden administration to a certain extent is trying to maintain some control over the situation,” McKinney said. “Whenever you’re dealing with immigration litigation you can’t just think about the facts right in front of you, you have to think about how any precedent is going to be applied in the future, to the detriment of a future administration.”
The Biden administration did not respond to a request for comment.
Some key points:
- A public health tool for ports of entry: The policy known as Title 42 is part of the Public Health Service Act that lets the director of the Centers for Disease Control and Prevention block migrants who don’t have visas from entering the U.S., to prevent the spread of serious communicable diseases and to protect the public’s health.Â
- “Least restrictive means”: Judge Emmet Sullivan of the U.S. District Court for the District of Columbia recently found the policy in violation of the Administrative Procedure Act; he agreed with the plaintiffs that the administration failed to impose the “least restrictive means” necessary – like masking, testing or quarantine – to prevent the spread of COVID-19 and ignored the harm caused by issuing the Title 42 order. Sullivan later granted the administration’s request for an extension, which put the end of the policy on hold until midnight on December 21.
“The administration is attempting to thread that needle by simultaneously arguing that the government should be able to use an authority like Title 42 with few limitations during a future pandemic, while at the same time acknowledging that Title 42 as it being used today is no longer appropriate,” said Aaron Reichlin-Melnick, policy director for the American Immigration Council.
Jessica Levinson, a professor at Loyola Law School who teaches constitutional law, called it a rational and strategic view of thinking through not just the political implications for the administration but the legal implications for future administrations.
“They’re taking a posture in court that feels in some ways opposed to the policy, but is meant to preserve the power of the executive branch,” Levinson said.
- To critics, the Trump administration’s use of Title 42 was a stretch because it injected immigration politics into public health and violated norms and treaties put in place to provide protection from persecution and torture.
- “We do not use a public health law to enforce our borders, we use immigration law to enforce our borders,” McKinney said.
- Some conservative, Republican-led states who favored Trump-era immigration policies have been pushing to maintain Title 42. Late Monday, 19 Republican-controlled states requested an emergency delay of Sullivan’s order pending appeal. The states noted that while the U.S. government acknowledged that the court should not have vacated the CDC’s action invoking its authority under Title 42, the U.S. also failed to seek a stay pending appeal “thereby ensuring that the harms that this court’s judgment would inflict upon the states will come to pass absent the states’ intervention.” On Tuesday, the Justice Department asked the court to denythe states’ effort.
- Federal agency authority in the areas of immigration, the environment and public health has been challenged in court recently, often by Republican states who seem to be setting up the cases to end up at the Supreme Court.
“At the end of the day, many of the public health authorities around the country have been undermined by state legislatures and some elected officials, governors and mayors,” said Dr. Georges C. Benjamin, executive director of the American Public Health Association. “Every few years you need to review them (public health authorities), but in many cases they need to be strengthened.”
Benjamin supported the administration taking “the long view” and doing what’s necessary to strengthen federal agency power when it comes to public health. He said he hoped this would include modernizing Title 42 for today’s world and the next pandemic.