On January 30, 2023, the Biden Administration announced that it planned to end the COVID-19 public health and national emergencies on May 11. The decision will have a number of impacts, including limiting federal support for COVID-19 tests, vaccines, and treatment. But it will also have a notable impact on immigration policy through its impact on Title 42, the public health law that federal authorities to turn away migrants at the border to “prevent [the] spread of communicable disease.”
A. Background on Health Emergency
COVID-19 was initially declared a “Public Health Emergency of International Concern” by the Director General of the World Health Organization (WHO) on January 31, 2020. The Secretary of the U.S. Department of Health and Human Services (HHS) followed suit on January 31, 2020 by declaring COVID-19 a public health emergency. COVID-19 was officially classified as a global pandemic by the WHO on March 11, 2020. President Trump issued a Presidential Declaration on March 13, 2020 that COVID-19 constituted a National Emergency.
One week later, on March 20, 2020, the Centers for Disease Control and Prevention (CDC) issued an interim final rule and order implementing Title 42 to halt the entry of migrants at the border. Subsequently, the CDC finalized the rule in September 2020 and has repeatedly renewed the implementing orders since that time. The final rule authorized the Director of the CDC to prohibit “the introduction into the United States of persons from designated foreign countries . . . or places, only for such period of time that the Director deems necessary to avert the serious danger of the introduction of a quarantinable communicable disease.” The CDC broadly defined “introduction” to also encompass individuals who have already entered the United States regardless of the amount of time they have been present in the U.S. The Biden administration issued a modified order in August 2021.
B. Background on Title 42
Title 42 is a public health law enacted in 1944 – 42 U.S.C. § 265 – that allows health authorities to deny individuals entrance into the United States in order to prevent the spread of communicable diseases. In the case of COVID-19, it has been used to immediately expel arriving migrants, including hundreds of thousands of families and children, without allowing them to first apply for asylum or other humanitarian protections.
In applying Title 42 and keeping it in place, both the Biden and Trump administrations have asserted that the policy is required to prevent the spread of COVID-19 in the United States. They have claimed that expelling migrants presenting themselves at the border, instead of adjudicating their claims, would reduce the risk of the transmission of COVID-19. Because border processing stations are not equipped to appropriately quarantine migrants waiting for their claims to be adjudicated and because border officials are not able to test and vaccinate incoming migrants, they have argued, Title 42 has been necessary.
However, the implementation of Title 42 is not a halt to all cross-border movement. The border has remained to open to cross-border trade and traffic throughout most of the period. Anyone with authorization to enter the United States, such as United States citizens, lawful permanent residents, and visa holders have been allowed to cross the border. Title 42 only applies to migrants crossing irregularly between ports of entry and migrants seeking asylum – a small subset of the total number of people seeking entry into the United States.
Because it is not an immigration law, Title 42 has largely failed to stem irregular migration at the border. U.S. Customs and Border Protection (CBP) reported increased migrant encounters every month for fifteen straight months following the implementation of Title 42. Because each migrant is immediately returned to Mexico and they face no penalties under Title 42 expulsions, migrants are incentivized to attempt multiple crossings. Furthermore, migrants who have been returned to or forced to remain in Mexico face a much higher risk of being exposed to extreme violence.
II. Legal Issues Relating to Title 42
A. Legal challenges to Title 42 and its termination
The Biden Administration originally attempted to terminate Title 42 in April 2022. Several Republican-led states filed suit in federal court in Louisiana challenging that termination in Louisiana v. Centers for Disease Control. The states persuaded the court to enter a preliminary injunction preventing Title 42’s termination in May 2022. The court held that the Biden administration failed to follow the required notice and comment period in the Administrative Procedure Act to terminate Title 42. The Biden administration appealed this decision to the U.S. Court of Appeals for the Fifth Circuit.
Subsequently, in separate litigation brought by the American Civil Liberties Union and others in Huisha-Huisha v. Mayorkas, a federal court in Washington D.C., struck down the continued reliance on Title 42 as being “arbitrary and capricious in violation of the Administrative Procedure Act” in November 2022. The court found that Title 42 is not rationally related to its stated public health rationale of preventing the spread of COVID-19. The court stayed its decision until December 21 at the request of the Biden administration to afford it time to wind down the policy.
Following the ruling of the court in Huisha-Huisha, the Biden administration filed an appeal on December 7, 2022 challenging the court’s determination that the Title 42 orders were unlawful. The Biden administration also asked the court to stay the appeal until the Fifth Circuit reached a decision in Louisiana v. Centers for Disease Control and the CDC had undertaken notice-and-comment rulemaking to replace the underlying regulation 42 C.F.R. § 71.40. This action would allow Title 42 to end on December 21, 2022, prior to the appeal being heard.
Nineteen Republican-led states, led by Arizona, filed a new lawsuit in early December – Arizona v. Mayorkas – seeking to intervene in Huisha-Huisha to allow them to argue against the termination of Title 42. However, the U.S. Court of Appeals for the D.C. Circuit rejected their motion to intervene because of its “inordinate and unexplained untimeliness,” noting that the case had been pending for nearly two years. The states subsequently filed an emergency application in the U.S. Supreme Court to stay the end of Title 42 beyond the December end date as set out by the court in Huisha-Huisha. The Supreme Court stayed the district court’s order terminating Title 42 and set oral arguments for Arizona v. Mayorkas in March to determine whether the states can intervene in Huisha-Huisha. The Court made clear that their stay would not prevent the Biden administration from taking action on Title 42, although analysts noted that the Louisiana decision would limit the administration’s ability to do so.
B. How does the end of the public health and national emergencies affect the continuation of Title 42?
The August 2021 Title 42 order states the following:
This Order will remain in place until either (1) the expiration of the Secretary of HHS’ declaration that COVID-19 constitutes a public health emergency, or (2) the CDC Director determines that the danger of further introduction of COVID-19 into the United States has declined such that continuation of the Order is no longer necessary to protect public health, whichever occurs first.
1. CDC Director Determination
In April 2022, the Biden administration sought to end Title 42, arguing that advancements in vaccines, the widespread availability of COVID testing, and newly implemented COVID-procedures at the border no longer required the expulsion of migrants to prevent the introduction of COVID-19 into the U.S. In short, the CDC Director determined that “the danger of further introduction, transmission, or spread of COVID-19 into the United States from covered noncitizens . . . has ceased to be a serious danger to the public health.”
The district court in Louisiana v. Centers for Disease Control held that the CDC’s Termination Order from April 2022 was not sufficient to halt Title 42. While the initial order establishing Title 42 was initiated within days of the COVID-19 emergency declaration as an interim final rule, the court held that its termination required a lengthier process, asserting that it was not exempt from the Administrative Procedure Act’s notice-and-comment rulemaking process. This would require the CDC to engage in a months-long rulemaking process under which it would provide notice of the Termination Order and solicit comments to be considered prior to adopting a new rule to end Title 42.
2. Expiration of Public Health Emergency
The January 30, 2023 announcement that both the public health and national emergencies will expire at the same time on May 11, 2023, implicates a different section of the August 2021 Order. Pursuant to the language of the August 2021 Order, the Order terminates “as soon as the public health emergency expires.” The plain text of the order then indicates that Title 42 should end on May 11, 2023.
The Biden administration has contended that the end of the COVID-19 emergency triggers the end of Title 42. On February 7, 2023, the Department of Justice filed a brief in Arizona v. Mayorkas urging the U.S. Supreme Court to dismiss the case, arguing that the impending end of the public health emergency will “terminate the Title 42 orders and moot this case.” They additionally filed a brief in the continuing litigation in Louisiana arguing that the end of the public health emergency will moot that case. On February 17, the Supreme Court cancelled the oral arguments scheduled for March but did not lift the stay of the district court’s order.
While the language of the August 2021 Title 42 order is contingent on the existence of the COVID-19 emergency, congressional Republicans have argued that the end of the COVID-19 public health emergency does not necessarily implicate Title 42. Although House Republicans have voted to end the public health emergency declaration, they claim that the declaration is legally distinct from the Title 42 order. Lawyers for the GOP-led states seeking to intervene in Arizona v. Mayorkas have indicated they plan to continue litigating the issue, arguing that notice-and-comment rulemaking is required to end Title 42, even after the emergency has ended.
C. What is the future of the Title 42 policy?
Despite Title 42’s failure as an effective immigration enforcement policy and the multiple legal hurdles to its continuation, the policy is likely to remain in place for at least the next several months and possibly longer.
With the Supreme Court declining to lift its stay of the ruling terminating Title 42, the policy currently remains in place. And while the end of the public health emergency most likely spells the end of Title 42 on May 11, 2023, ongoing litigation by Republican-led states is likely to continue for the time being. Courts skeptical of Biden-era immigration policies could order the continuation of the policy beyond the end of the emergency.
Even if courts put an end to Title 42, the Biden administration could attempt to revive it by decoupling it from the COVID-19 health emergency and tying it to a different health emergency. While seemingly unlikely, and subject to additional legal challenges, the Biden administration has repeatedly sought to continue and extend Title 42 over the past two years, including earlier this year.
In addition, Congress may attempt to reinstate Title 42 through legislation. The December 2022 immigration framework from Senators Krysten Sinema (I-Arizona) and Thom Tillis (R-North Carolina) would have extended Title 42 by one year. In 2023, a bipartisan group of senators recently reintroduced the Public Health and Border Security Act, which was originally introduced in 2022. That proposal would delay the end of Title 42 until the U.S. Surgeon General and DHS Secretary jointly submit a plan to Congress to address a possible influx of migrants related to the termination of Title 42. Other recent legislative proposals would suspend the entry of migrants regardless of an existing health emergency.
The National Immigration Forum would like to thank Leighton Fernando G. Cook, policy intern, for his extensive contributions to this explainer.