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"Title 42" Comes to the Court: Steve Vladeck

December 26, 2022 (10 min read)

Prof. Stephen I. Vladeck, Dec. 26, 2022

"...  “Title 42” is an incredibly vague shorthand for a very specific immigration policy that was begun by the Trump administration early in the COVID pandemic. The term is a reference, believe it or not, to nothing more specific than the massive and wide-ranging Title 42 of the U.S. Code, one small section (section 265) of which gives the government (today, the CDC) “the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert [the] danger [posed by the spread of a communicable disease], and for such period of time as he may deem necessary for such purpose.”

Here’s the full text of the provision, enacted as part of the Public Health Service Act of 1944 (and never amended since):

In other words, the “Title 42” policy is a broadsword, allowing immigration officers to deny entry at the border in the midst of a pandemic to those suspected of potentially carrying communicable diseases, even if they are seeking asylum or other humanitarian relief for which they are legally eligible to apply, if not to receive.

Critics of the government’s reliance on “Title 42” have argued that it’s little more than a pretext—a way to justify especially harsh asylum policies that are not in any way actually aimed at protecting public health, and to thereby close the door to asylum for many who might otherwise be eligible to seek it. (Consider, in this regard, the Venn diagram between politicians loudly arguing to continue the “Title 42” program and those who have argued that any public health justifications for domestic pandemic restrictions have long-since evaporated.)

In a nutshell, although “Title 42” is supposed to be a public health-specific program, it has become popular in some circles entirely because it takes the relevant decisionmakers off the hook for more nuanced policies to address immigration at the southern border, under the putative rubric of protecting against the spread of COVID. Whatever one thinks of the origins and responsibility for the current border situation, it clearly has increasingly little to do with the COVID pandemic, so that the reliance upon “Title 42” as some kind of general solution seems increasingly difficult to justify. (Multiple Justices have already expressed skepticism about executive officials using the COVID pandemic as pretextual cover for regulatory actions they couldn’t otherwise take.)

Indeed, the policy also appears to have had the counterintuitive effect of increasing attempted border crossings (and perhaps exacerbating the current situation), since those who are immediately expelled under “Title 42” have no reason not to try entering a second time, versus those who present themselves for asylum and await the outcome of their proceedings. (The American Immigration Council has a helpful summary of the policy’s dramatic effects both in this respect and others.)

In August 2021, the Biden administration issued its own rule under section 265 that, in material respects, mirrored the Trump-era guidance—and continued the program, at least temporarily. Then, on April 1, 2022, the administration shifted gears, rescinding the policy as of May 23, 2022 in light of “the readily available and less burdensome public health mitigation tools to combat the disease.” Matters might have ended there, but for two overlapping (albeit distinct) lawsuits.

The first lawsuit is the reason why the policy did not end on May 23. In it, 24 (red) state AGs, led (alphabetically) by Arizona, sued in the Western District of Louisiana, claiming that the Biden administration hadn’t dotted the i’s and crossed the t’s in rescinding its August 2021 directive. The district court in Arizona v. CDC agreed, issuing a nationwide preliminary injunction against the April 2022 rescission of Title 42, holding that the Biden administration had likely violated the Administrative Procedure Act by failing to engage in notice-and-comment rulemaking. Both the CDC and private intervenors have appealed that ruling to the Fifth Circuit, where the briefing is complete, but the appeal has not yet been scheduled for argument.

The second lawsuit (the one that has now reached the Supreme Court) comes from the other direction—a challenge to the lawfulness of the Title 42 policy itself. Filed in the D.C. federal district court and captioned Huisha-Huisha v. Mayorkas, the suit sought class-wide relief against the policy on the ground that it was arbitrary and capricious under the APA.

After a series of rulings (including one by the D.C. Circuit), on November 15, D.C. district judge Emmet Sullivan sided with the plaintiffs and issued a permanent injunction against the Title 42 policy in a 49-page opinion. Sullivan also agreed, however, with “great reluctance,” to stay his decision for five weeks to give the federal government time to unwind the policy. That stay (and, with it, Title 42) was set to expire on Wednesday, December 21.

[One quick note before getting to the current SCOTUS action: The Huisha-Huisha and Arizona rulings don’t formally conflict. The Arizona ruling blocked the Biden administration’s April 2022 rescission of Title 42, but the Huisha-Huisha ruling blocked the policy itself, so that the termination of the policy would be court-ordered, not regulatory. That’s why the policy was set to expire last Wednesday notwithstanding the district court’s nationwide injunction in Arizona v. CDC; even if the Biden administration was blocked from formally “rescinding” the policy, Judge Sullivan’s injunction prevents it from carrying out the policy.]

On December 9, the Biden administration appealed Judge Sullivan’s ruling to the D.C. Circuit, but it did not seek a stay of that ruling pending appeal (and apparently was willing to hold that appeal in abeyance pending the Fifth Circuit’s decision in the Arizona v. CDC case). It’s at this point that Arizona and 18 of the other 23 states that were parties to the Louisiana case took matters into their own hands. On December 12, they filed an extraordinary pair of motions in the D.C. Circuit, seeking (1) leave to intervene in the federal government’s appeal; and (2) an emergency stay of Judge Sullivan’s ruling to prevent it from going into effect on December 21.

On Friday, December 16, an ideologically diverse panel of the D.C. Circuit (Pillard, Walker, & Pan, JJ.) denied both motions, with no public dissent. As the panel explained in a brief order, the states had acted in a thoroughly untimely manner in seeking intervention, waiting until after Judge Sullivan’s entry of final judgment (over two years into the litigation) to seek to participate. The short unsigned opinion detailed how it had been clear for some time (since at least October 2021) that the states’ interests and the federal government’s were likely to diverge, and that it had been clear for over eight months that they had diverged. And because the court of appeals denied the states’ motion to intervene, it dismissed the motion for an emergency stay as “moot” (since the states, as non-parties, were not entitled to seek such relief).

Thus, the emergency application that these 19 states filed with the Supreme Court last Monday is in a very strange posture. Although it indirectly attacks Judge Sullivan’s permanent injunction of Title 42, it’s directly attacking the D.C. Circuit’s refusal to allow the states to intervene in the federal government’s appeal—seeking an emergency stay of Judge Sullivan’s injunction while the intervention issue is hashed out (including, potentially, through a grant of certiorari solely on the intervention issue).

In other words, it’s an emergency application by non-parties, asking the Court to stay a district court ruling to which they were not parties because (they claim) there’s a decent chance they’ll win on whether they should have been allowed to intervene in the D.C. Circuit—and then win the appeal of Judge Sullivan’s ruling to the D.C. Circuit on the merits.

In that respect, the “Title 42” application raises an intervention question similar to one on which the Court had granted certiorari last Term, only to “DIG” the case, i.e., dismiss certiorari as improvidently granted—without a ruling on the merits. In Arizona v. City and County of San Francisco, a number of red states likewise sought to intervene in a lawsuit challenging the Trump-era “public charge rule” for the purpose of defending the rule after the Biden administration declined to do so.

Writing for himself and Justices Thomas, Alito, and Gorsuch, Chief Justice Roberts concurred in the Court’s decision to the “DIG” the case, but wrote to note the importance of the questions the case raised about when the federal government could use court-ordered decrees blocking a prior administration’s policy as justification for rescinding the policy without notice-and-comment rulemaking—and when states could intervene to defend that prior policy if the current administration sought to do so.

It’s worth stepping back for a moment to reflect on this point. Whether the federal government should be allowed to decline to appeal adverse court rulings throwing out policies it doesn’t like (or, at the very least, to use those rulings to justify short-circuiting the APA) is one question; whether states should be allowed to intervene in court for purposes of defending those policies if the federal government won’t seems another matter altogether. Indeed, allowing states to defend a prior administration’s policies seems like a rather dangerous way of inverting the relative roles and responsibilities of state and federal governments—and an easy way to allow appellate courts to prevent the incumbent President from getting rid of his predecessor’s policies—even where lower courts have held them to be unlawful.

There’s also the high (and problematic) likelihood that such a new approach to state intervention would not end up being symmetrical in its application—since Republican-appointed judges and Justices may, in general, be more sympathetic to red-state challenges to efforts by Democratic Presidents to rescind their Republican predecessors’ policies than vice-versa.

And last, there’s the matter of allowing states to effectively intervene in the federal executive branch’s discretion to adopt or rescind policies—which, of course, dovetails with Texas’s attempt to have a district judge control the federal government’s immigration enforcement priorities in United States v. Texas (in which the Court heard argument earlier this month). Among other things, this could lead to the ability of a sitting President to entrench his or her policies in a way that would be unduly difficult for their successors to unwind, so long as there’s at least one state willing to defend them (which, in the current political climate, there surely will be).

Simply put, the actual intervention question in the “Title 42” case has enormous potential ramifications that go well beyond this particular, controversial policy. And so whatever one thinks about “Title 42” as either a policy or legal matter, this dispute is actually a much bigger deal than even this one massively significant policy.

But whatever the broader merits of the intervention question, it’s also worth stressing that it’s arising here (in what’s now captioned “Arizona v. Mayorkas”) in the specific context of an emergency application—where the burden for relief is supposed to be meaningfully higher than if the issue were fully before the Court on plenary review.

And in this case, specifically, it’s arising in a context in which three court of appeals judges from across the ideological spectrum took the view that the states’ proposed intervention was extremely untimely—a procedural obstacle to reaching even the substance of the intervention issue, let alone the procedural or substantive validity of “Title 42” itself. In that respect, the states’ application presents something very similar to the “mare’s nest” that led Chief Justice Roberts to concur in the Court’s DIG last Term in Arizona v. City and County of San Francisco—which, again, arose in a context in which the Court was conducting plenary review, not considering an emergency application.

Ultimately, it’s foolish to try to predict how the Court is likely to rule. The only thing that seems likely is that such a ruling won’t come before tomorrow—since the Biden administration’s response explained it would need at least that much time to continue unwinding the policy. And if the Court does deny relief, it’s hard to imagine that (1) there won’t be some statement about why; or (2) there won’t be several public dissenting votes.

All of which is to say, stay tuned…"

Stephen I. Vladeck (@steve_vladeck) holds the Charles Alan Wright Chair in Federal Courts at The University of Texas School of Law and is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Professor Vladeck has argued over a dozen cases before the U.S. Supreme Court, the Texas Supreme Court, and various lower federal civilian and military courts; has testified before numerous congressional committees and Executive Branch agencies and commissions; has served as an expert witness both in U.S. state and federal courts and in foreign tribunals; and has received numerous awards for his influential and widely cited legal scholarship, his prolific popular writing, his teaching, and his service to the legal profession.