National Security

Biden administration to appeal ruling striking Title 42, pledges new regulation from CDC

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The Biden administration on Wednesday said it plans to appeal a court ruling striking down the Title 42 policy limiting asylum, forecasting that public health authorities plan to write a new regulation to replace it.

The coming appeal puts the Department of Homeland Security at the center of conflicting court cases on Title 42, which allows border officials to rapidly expel migrants on public health grounds without allowing them to seek asylum.

“CDC’s Title 42 Orders were lawful … [and] this Court erred in vacating those agency actions,” the government wrote in a filing before the District Court for the District of Columbia, which struck down Title 42 on Nov. 15.

In appealing the case, the Biden administration seeks to challenge a ruling that mooted a decision by another court in a case brought by the state of Louisiana, which had blocked the Centers for Disease Control and Prevention (CDC) from rescinding the policy with its April order.

Title 42, crafted in the early days of COVID-19 by the Trump administration, was marketed as a pandemic response policy, but many observers deemed it a transparent attempt to use the pandemic as an excuse to gut the asylum program.

The latest twist in the litigation continues the Biden administration’s complex relationship with the policy, which they have now used to expel far more migrants than under Trump.

“We are not surprised by the decision to appeal given the Biden administration’s vigorous legal defense of Title 42 over the past two years,” Lee Gelernt, a lawyer for the American Civil Liberties Union representing those suing over Title 42.

Wednesday’s filing also indicates that the nation’s public health authorities are grappling with another policy that that could have implications at the border.

“HHS [The Department of Health and Human Services] and CDC have themselves decided to undertake a new rulemaking to reconsider the framework under which the CDC Director may exercise her authority under [Title 42] to respond to dangers posed by future communicable diseases,” according to the filing.

The portion of the law references in the filing specifically deals with the “suspension of entries and imports.”

The CDC did not immediately respond to request for comment seeking more details about the forthcoming rulemaking.

Any new policy limiting migration based on public health under Title 42 could run counter to the CDC’s determination in April that the order limiting asylum was no longer necessary.

“Based on the public health landscape, the current status of the COVID-19 pandemic, and the procedures in place for the processing of covered noncitizens … CDC has determined that a suspension of the right to introduce such covered noncitizens is no longer necessary to protect U.S. citizens,” the CDC wrote at the time.

But the rule comes after Homeland Security Secretary Alejandro Mayorkas hinted that the department would explore other ways to limit migration for Venezuelans after the fall of Title 42. 

In its filing with the court, the Department of Homeland Security said it would likewise seek a pause in litigation with Louisiana, where the government is arguing CDC properly rescinded Title 42 and its termination should be allowed to take effect.

Homeland Security noted that the new regulations from CDC “could likewise moot” the issues underpinning the Louisiana case.

In the ACLU case however, U.S. District Judge Emmet Sullivan last month found the rollout of Title 42 violated the Administrative Procedures Act, writing the government “failed to adequately consider alternatives and the policy did not rationally serve its stated purpose.”

The judge also noted the CDC’s “decision to ignore the harm” caused by the policy likewise violated the Administrative Procedures Act.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor,” Sullivan wrote, noting warnings that migrants often face persecution and violence once expelled.”

Updated at 5:25 p.m.

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