Biden administration appeals court decision that blocked policy allowing the US to turn away southern border migrants
Last month, US District Judge Emmet Sullivan blocked the authority, known as Title 42, but agreed to a Biden administration request that he pause his ruling for five weeks so that the government can prepare to comply with it.
Wednesday, the Justice Department told the court it planned to appeal.
“The government respectfully disagrees with this Court’s decision and would argue on appeal, as it has argued in this Court, that CDC’s Title 42 Orders were lawful … and that this Court erred in vacating those agency actions,” the Biden administration said in a court filing.
Title 42 – which has been heavily criticized by public health experts and immigrant advocates – has largely barred asylum at the US-Mexico border, marking an unprecedented departure from traditional protocol.
But while its origins were in the Trump administration, Title 42 has become a key tool for the Biden White House as it faces mass migration in the Western hemisphere. Officials have been bracing for an influx of migrants when the authority lifts.
The new filing does not ask the court to reconsider the determination made by the US Centers for Disease Control and Prevention that Title 42 is no longer needed, an administration official noted. Rather, the Justice Department has indicate it is seeking an appeals court ruling to establish that the CDC was within its legal authority in making such a determination.
The official also said that Department of Homeland Security is continuing with its preparations for Title 42 to lift on December 21, the expiration of the pause Sullivan placed on his ruling striking the policy down.
Several Republican-led states have asked the court to let them intervene in the case striking down the Title 42 ruling, so that the states could defend the Trump-era policy.
In their request to intervene, the Republican states pointed to the separate litigation they had brought challenging the Biden administration’s efforts to end the authority, which resulted in a court order from a separate court blocking Title 42’s termination earlier this year.
“Because invalidation of the Title 42 Orders will directly harm the States, they now seek to intervene to offer a defense of the Title 42 policy so that its validity can be resolved on the merits, rather than through strategic surrender,” they wrote.
The states seeking to defend the policy are Arizona, Louisiana, Alabama, Alaska, Kansas, Kentucky, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Virginia, West Virginia, and Wyoming.
The federal government’s approach to the Title 42 rule has been the target of litigation from both the policy’s critics and its supporters. Republican-led states previously filed their own lawsuit challenging the Biden administration’s attempt to end the policy, and in April, secured an order from a federal judge in Louisiana halting that termination.
The Biden administration is preparing a regulation for notice and comment following the Republican states’ argument in that lawsuit, which claimed that the federal government did not give opportunity for those states to prepare for the end of Title 42. The new framework would also make the Louisiana case moot.