A federal judge in Louisiana questioned on Friday whether the Biden administration could end a controversial Trump-era pandemic restriction, known as Title 42, later this month.
The public health authority at the center of the case is allowing U.S.-Mexico border officials to send migrants back to Mexico or their home country due to the public health crisis – an unprecedented decision invoked at the start of the coronavirus pandemic.
Since taking office, President Joe Biden’s administration has continued to rely on authority, but in early April the US Centers for Disease Control and Prevention announced plans to end the order. . The CDC said this is no longer necessary given current public health conditions and the increased availability of vaccines and treatments for Covid-19. The policy is set to end on May 23.
In a hearing lasting more than two hours on Friday morning, the states that filed a lawsuit against the decision to end the authority pointed to the costs, such as health care, to the states if the authority ends and potentially more migrants are released into the United States. They also argued that the administration failed to conduct notice and comment, a regulatory process.
“They have no idea of the damage done to the states,” said Arizona Deputy Solicitor General Drew Ensign, who has argued on behalf of more than 20 states.
The Justice Department, meanwhile, emphasized the urgency of the order and the CDC’s power to invoke or terminate it.
“States do not seriously challenge the public health determination,” Justice Department attorney Jean Lin said, adding that there was no reason to use Title 42 as a safety valve.
Judge Robert Summerhays, who presided over the hearing, occasionally interjected during oral argument and largely focused his questions on the harm done to the states and whether the administration had followed proper procedures, noting that the conditions had changed, potentially allowing for outside input.
Lin argued that the CDC must have the ability to remain flexible and respond quickly.
Summerhays said he will review the matter and make a decision before May 23, when the administration intends to terminate Title 42.
“Today was a great day,” Louisiana Deputy Solicitor General Scott St. John said following the hearing. “The judge asked very thoughtful questions.”
The CDC’s decision to scrap Title 42 has received heavy criticism from Republicans and Democrats over whether ending the authority is warranted and whether officials are prepared to handle an expected surge in the number of migrants to the border. On Capitol Hill, Democrats debate whether to allow a vote on Title 42 as they try to push through stalled Covid-19 aid.
Arizona, Louisiana and Missouri – whose trial was before the judge on Friday – took the 42 title fight to court last month, arguing that proper procedures were not followed when the administration called announced the end of the policy and that the administration had not provided a satisfactory explanation for ending it.
More than a dozen mostly GOP-led states have joined the lawsuit, all arguing alike that ending authority and potentially freeing more migrants in the United States would put a strain on tax the resources of the State.
Late last month, Summerhays issued a temporary restraining order as part of the lawsuit against the Biden administration’s decision to end the authority. The states have requested an extension in light of the expiry of this order.
Summerhays granted the extension this week, meaning the Biden administration is barred from ending the public health order until the court decides the case or May 23, when the administration planned to end title 42.
The Biden administration argued that the pandemic landscape had given way to the end of public health authority and that the order was an extraordinary measure.
Ending the authority would mean a return to traditional immigration protocols that have been in place for decades. Under this system, migrants are either deported from the country, detained or released in the United States while their case is taken to immigration court.
Homeland Security Secretary Alejandro Mayorkas recently told House lawmakers that the Biden administration’s preparations for the U.S.-Mexico border when pandemic restrictions are lifted are underway, admitting there will likely be an influx of migrants when that happens.
“With the lifting of the Title 42 public health order, we expect migration levels to increase as smugglers seek to take advantage of and take advantage of vulnerable migrants,” Mayorkas said during a hearing before bedroom. “We will continue to enforce our immigration laws.”
He described the six pillars of these plans, ranging from increasing resources on the southern border to cracking down on transnational criminal organizations.
Still, Republicans have criticized the administration. Republican Arizona Governor Doug Ducey announced Wednesday that the state will bus migrants encountered at the Arizona-Mexico border to Washington, D.C., following the example of Texas Governor Greg Abbott .
Arizona, like Texas, is grappling with an influx of migrants on its shared border with Mexico and has criticized the Biden administration for wanting to end Title 42.
Ducey cited resource constraint among the reasons for offering voluntary transportation to Washington.
“With Arizona’s community resources under all-weather demand, and little action or assistance from the federal government, people who have entered Arizona seeking asylum have the opportunity to be voluntarily transported to Washington, D.C. Transportation will include meals, as well as onboard personnel and support,” according to a statement.
Last month, Texas began busing migrants arrested at the border and released pending immigration court proceedings in Washington on a voluntary basis. Migrants who spoke to CNN said they plan to continue to other cities in the United States upon arrival in Washington and are grateful for the transportation.
Local organizations assisted migrants dropped off at Union Station by helping them get to their next destination or providing any services they might need.
This story was updated with additional developments on Friday.