With Title 42 set to expire in a matter of months, the Department of Homeland Security (“DHS”) is preparing for a significant increase in migration into the United States.  A recent DHS announcement provides unique insight into the Biden administration’s careful handling and the undoing of many Trump-era policies and sheds light on the legal fight that is likely to come.

What Is Title 42?

On March 20, 2020, at the outset of the COVID-19 pandemic, former President Trump previewed a measure that was aimed to curb “mass uncontrolled cross-border movement.” The policy ultimately restricted migration into the United States even more than Trump’s previous border policies.

To enact such a policy, Director of the Centers for Disease Control and Prevention (“CDC”) Robert Redfield invoked a World War II-era public health law authorizing immigration officials to deport migrants from the country. The law, which appears in Title 42 of the U.S. Code, granted the government the “power to prohibit, in whole or in part, the introduction of persons and property” to stop a contagious disease from spreading in the country. 

Initially enacted for only 30 days, the order was extended indefinitely in May of 2020. The new policy was quickly met with backlash from senior government officials who claimed the order was unnecessary to contain the spread of COVID-19.  To date, the policy has been used to deport over one million individuals.

Biden Administration Aims to End Title 42

Departing from Trump-era immigration policies, the Biden administration, through the CDC, has announced the Title 42 Public Health Order will terminate as of May 23, 2022. Beginning on that date, DHS will no longer process families and single adults for expulsion and instead will process them for removal under Title 8, as was the case prior to the COVID-19 pandemic. Under Title 8, those who attempt to enter the United States without authorization and are unable to establish a legal basis to remain in the country are subject to long-term consequences including removal and bars to future immigration benefits.

DHS recently announced its strategy to address the increase in migration into the country following the end of Title 42. The strategy includes 1) acquiring and deploying resources to address increased volume; 2) delivering a more efficient and fair immigration process; 3) processing and removing those who do not have valid claims; and 4) working with other countries in the Western Hemisphere to manage immigration and address root causes. The details of the strategy can be found here. 

Republican Lawmakers Sue to Block Biden’s Attempt to End Title 42

The Biden administration’s announcement is, unsurprisingly, not without its critics from across the aisle. In response to the impending end of Title 42, the Texas Attorney General filed a lawsuit seeking to block an end of the program. Since that time, more than 20 states joined together to temporarily block the Biden administration from ending the policy. 

The lawsuit argues that ending Title 42 “was done unlawfully and will have a devastating impact on states.”  The Complaint challenges what it describes as “an imminent, man-made, self-inflicted calamity: the abrupt elimination of the only safety valve preventing this administration’s disastrous border policies from devolving into an unmitigated catastrophe.”

According to a tweet by Missouri Attorney General Eric Schmitt, a federal judge agreed with the states and granted a Temporary Restraining Order to keep Title 42 in place.  It remains to be seen how the Courts will grapple with the contention over the policy.