Last Monday, the attorneys general of Arizona, Louisiana, and Missouri sued the Biden administration in a cynical attempt to force the Centers for Disease Control and Prevention to reinstate a Trump-era immigration directive known as Title 42. This bid by Republican-controlled states to seize control of national immigration policy using a far-right judiciary is just the latest in a sequence of distressingly successful cases in which members of the Republican Party have done exactly that.
“Title 42” refers to sections of the Public Health Service Act that authorize the CDC to prohibit the “introduction” of people into the United States when “necessary” to avoid a “serious danger” of a communicable disease’s spread. Title 42 is a public health law, not an immigration law, and the statutory text applies to all people who enter the country, immigrants and non-immigrants alike. However, former senior White House advisor and current white nationalism enthusiast Stephen Miller, perpetually in search of excuses to deprive asylum-seekers of due process, had eyed Title 42 for years as a tool for effectively closing the southern border. When the COVID-19 pandemic began, he very much got his wish.
The Trump administration’s abuse of Title 42 hinges on a legal fiction. Typically, seeking asylum requires one’s physical presence in the United States. But people expelled under Title 42, ostensibly in the name of public health, are considered to have never even been “introduced”—even if they were, in fact, present in the U.S. In March 2020, Miller and Vice President Mike Pence successfully pressured then-CDC Director Robert Redfield to issue an order that applied Title 42 exclusively to noncitizens arriving at the border without documentation, expelling them near-instantly. They did so over the strenuous objections of CDC scientists, who reiterated that no public health justification existed for this hamfisted effort by a nativist cretin to weaponize a deadly pandemic against Black and brown migrants, eviscerating a human right codified in federal and international law since World War II.
Migrants gather at a makeshift camp near the San Ysidro Port of Entry on July 22, 2021 in Tijuana, Mexico (Photo by Mario Tama/Getty Images)
By any metric, Title 42 has been a horrendous failure. The U.S. has sent nearly two million people either to their countries of origin or to dangerous border cities in Mexico. There is no indication that expelling migrants in this manner had any impact on the spread of COVID-19. (It’s not even clear how that claim ever seemed plausible; for every migrant who is expelled, 100 travelers who are no less likely to carry COVID-19 are allowed through the southern border.) Federal officials have also applied Title 42 in startlingly racist ways: Most recently, Customs and Border Protection agents were “reminded” to consider exercising their authority to exempt migrants from Title 42 expulsions for Ukrainians. In practice, this has led to a blanket exemption for migrants from the only majority-white country arriving at the border in significant numbers, clarifying that the Trump administration’s use of Title 42 is really only about keeping the “wrong” kinds of people away.
Title 42 is only one issue among an already-lengthy series of immigration cases in which Republican judges have tried to commandeer federal policy, maintaining much of the status quo put in place by the president who appointed them. Less than halfway through Biden’s term, Trump-appointed judges have blocked a 100-day pause on deportations; mandated reinstatement, with the Supreme Court’s blessing, of the “Remain in Mexico” program that drives asylum seekers into notoriously dangerous tent camps; and twice prevented ICE from prioritizing arrests and deportations of noncitizens they consider “high-risk.” A George W. Bush appointee in Texas also declared the entire DACA program unlawful, allowing current recipients to maintain their status but shutting down the application process. In addition, the Supreme Court looks ready to allow Republican states to defend a 2019 public charge rule that established a strict wealth test for new green cards after the Biden administration withdrew from defending it.
The choice of venue in the Title 42 lawsuit—the Lafayette Division of the Western District of Louisiana—is not a coincidence. Three of the division’s four district court judges are Trump appointees, and the other, who has taken senior status, isn’t hearing cases. Forum shopping for friendly judges has been a common strategy for Republicans on immigration issues. Cases filed in the Amarillo Division of the Northern District of Texas, for example, have a 95% chance of drawing Trump-appointed Matthew Kacsmaryk, who ordered the Remain in Mexico reinstatement—and, incidentally, who has a long history of virulently anti-LGBTQ statements.
The complaint is as lacking in substance as it is in good faith. One of the states’ core claims is that the CDC was required to undergo the lengthy notice and comment rulemaking process in order to rescind the order, but not to issue it. They argue that COVID-19 constituted an emergency in 2020, but no such emergency exists now. Unsaid is the fact that the order, which the states concede the CDC issued lawfully, explicitly authorizes the CDC director to terminate it at her discretion. Also unsaid is the fact that they don’t consider harm to migrants to be an emergency at all.
The states also claim that the CDC needed to fully analyze how Title 42’s rescission would affect their own interests. It strikes me that determining exactly how much “additional moneys on education” Missouri might be required to spend is not particularly relevant to the question of whether an emergency, discretionary, temporary-by-nature public health order is still necessary. And the repeated xenophobic references to an anticipated “surge” of migrants when Title 42 is lifted mischaracterizes the facts—border crossings are at historic highs because of Title 42, which allows CBP to deport people quickly and without any due process.
State attorneys general and federal judges aren’t the only ones joining this fight. Republicans in Congress are already pushing hard to legislatively bring back Title 42, often by talking about “drug backpacks” and deterrence instead of public health. Senate Minority Leader Mitch McConnell is trying to tie Title 42 to new COVID-19 relief packages, and a worrying number of Democrats are thinking about joining him: A a bipartisan group of senators has already introduced a bill that would keep Title 42 in place until at least two months after the formal termination of the COVID-19 public health emergency declaration.
Trump may not be in charge of immigration policy anymore, but the federal bench remains stacked with right-wing activists who will strike down Democratic priorities and uphold Republican ones at every opportunity. Unless and until Democrats get serious about court reform, this era of zombie immigration policy by judicial fiat will continue. It’s Brett Kavanaugh’s world, and we’re just living in it.
