Title 42 upheld in Louisiana district court, preserving pandemic-era immigration policy

LAFAYETTE, LA — Last Friday, a federal district judge in Louisiana filed an order blocking the Biden administration’s plan to lift Title 42, an immigration policy put in place in March 2020 at the onset of the COVID-19 pandemic. The Department of Justice quickly filed an appeal, sparking what could become a months-long legal battle. 

District Judge Robert R. Summerhays, a Trump appointee in Lafayette, Louisiana, ruled that Title 42 must remain in place while 24 states sue the Biden administration for attempting to end the policy. The case now resides in the 5th U.S. Circuit Court of Appeals.

Title 42 was invoked by the Trump administration to allow for “immediate expulsion” of migrants at the southern border, including asylum seekers. To prevent the spread of coronavirus, the policy put an end to the practice of holding migrants in detention centers. In the Big Bend sector, this practice has entailed a nightly drop-off of apprehended migrants at the Ojinaga bridge, as The Big Bend Sentinel reported last June. 

The Centers for Disease Control and Prevention (CDC) invoked its authority under Title 42 due to the unprecedented public-health dangers caused by the COVID-19 pandemic,” the U.S. Department of Justice wrote in an official statement accompanying their appeal on Friday. “The CDC has now determined, in its expert opinion, that continued reliance on this authority is no longer warranted in light of the current public-health circumstances.”

Prior to the COVID-19 pandemic, Title 42 was an obscure part of the U.S. Code dating back to the Public Service Health Act of 1944. Among many other projects, the law intended to modernize the government’s approach to handling communicable disease — hot topics included the subsidized leper colony on the Hawaiian island of Molokai, “slum clearance,” and whether the government should encourage “voluntary” family planning. 

The vintage legislation came in response to epidemics of now-treatable diseases like tuberculosis and typhus. Title 42 granted the federal government the power to respond to epidemics as a state of emergency and use them as a rationale to block entry into the United States — that part of the code was never officially utilized until the Trump administration seized the opportunity. 

“The Surgeon General, in accordance with regulations approved by the President, shall have 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 such danger, and for such period of time as he may deem necessary for such purpose,” the law cited in Summerhays’’ order reads. 

Rhetoric associating immigration with disease is nothing new along the U.S.-Mexico border. The Quarantine Act of 1893 followed a wave of anti-immigrant policy and an international cholera epidemic, during which President Harrison ordered all incoming ships of immigrants quarantine for 20 days. This style of pandemic response led to the development of more intense medical examinations at ports of entry in the United States. 

The harshness of these examinations pushed migrants to cross at places other than official ports of entry, instead choosing to brave remote stretches of desert or river. In 1917, Carmelita Torres, a teenage girl working as a maid in the U.S., sparked the Bath Riots in El Paso. She and other migrants protested the use of poisonous chemicals to delouse people crossing the border, a dangerous process during which many female migrants reported sexual abuse. 

The call to keep Title 42 in place came from 24 “plaintiff states” named in Summerhays’ ruling. The list of “plaintiff states” falls reliably on party lines –– of those 24, only Tennessee and Kansas currently have Democratic governors. Many of the states –– including Missouri, South Dakota, and Oklahoma –– have neither land nor sea borders but claim large numbers of people who entered the country illegally have moved to their states. 

Governor Abbott’s official statement on the attempted repeal of Title 42 does not mention communicable disease at all: “While today’s court ruling rejecting President Biden’s ending of Title 42 expulsions is a positive development, hundreds of thousands of illegal immigrants remain at our southern border ready to flood into Texas,” his office wrote. 

Advocates for immigrants on the border don’t think that’s a coincidence. “The imposition of Title 42 was not a healthcare mandate, it was a political decision,” said Fernando García, executive director of El Paso’s Border Network for Human Rights. “It doesn’t have anything to do with the reality of the border. It was like a Christmas gift — [Republicans] got a program that will expel immigrants without granting them due process or the right to apply for asylum.” 

Asylum claims have been a source of frustration and confusion on the U.S.-Mexico border even before the pandemic. For a wide range of financial and logistical reasons, refugees from all over the world try their luck at the southern border. In the past few years, people fleeing conflicts in Haiti, Afghanistan and Ukraine have made front page news trying to apply for asylum in the U.S. from Mexico. 

In 2019, the Trump administration implemented the “Remain in Mexico” policy, where asylum-seekers were sent back across the border to await processing. The ACLU filed a suit that reached the Supreme Court at the end of April, alleging that the policy put already-vulnerable people in unnecessarily dangerous situations. Within the first two years of the policy, Human Rights First documented 1544 instances of violence directed at migrants expelled under the law. 

The resistance to change these policies may have to do with what García calls a “staged crisis at the border.” In Customs and Border Protection’s April 2022 operational update, the agency explains that Title 42 has led to inflated statistics: “Since many people expelled into Mexico under Title 42 try to reenter the U.S., Title 42 has contributed to a higher-than-usual number of migrants making multiple border crossing attempts, which means that total encounters somewhat overstate the number of unique individuals arriving at the border.” 

The agency’s own admission has not stopped Texas politicians from using those numbers to fearmonger about a “flood” of migrants headed across the Rio Grande — an investigation by Pro Publica, the Texas Tribune, and the Marshall Project found that the governor’s office had been chronically cooking books in order to statistically back up the success of his border security initiative, Operation Lone Star. 

Media sources cited in documents brought before the court estimated a “surge” of 25,000 to 60,000 migrants “waiting in Mexican shelters for Title 42 to end.” Customs and Border Protection addressed these concerns in its latest operational update: “DHS has been executing a comprehensive strategy to secure our borders and rebuild our immigration system. DHS began planning last September, and we are leading the execution of a whole-of-government strategy to prepare for and manage any rise in noncitizen encounters.” 

Court documents did not provide a timeline for the appeals process. Customs and Border Protection in the Big Bend Sector declined a request for comment.