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What the U.S. Government is Doing to Address Title 42

The battle to end Title 42 is being waged in Congress and the courts.
Sign on fence reading, “U.S. property No Trespassing (Authorized Personnel Only)”; American flag in the background

May 10, 2022

This is part two of a two-part series. Read part one here

What is happening in Congress related to Title 42? 

In part due to the sensationalized reporting discussed above and the fears of backlash, some politicians from both major parties in Congress are now backing legislation that would indefinitely extend Title 42. A bill co-sponsored by Sen. Kyrsten Sinema (D-AZ) and Sen. James Lankford (R-OK) would block the government from ending Title 42 sooner than 60 days after the U.S. Surgeon General officially ends the public health emergency declaration related to COVID-19. 

This would have horrendous consequences. It would confront the U.S. government with a Sophie’s Choice. On the one hand, they could end the public health emergency, jeopardizing funds and a variety of public health mitigation tools, even as COVID cases surge and people continue to die needlessly from the virus. Or, they could keep the emergency declaration in effect, but extend a cruel anti-asylum policy that actually has nothing to do with public health and does not help us fight the pandemic.

Still worse, politicians promoting this bill have tried to link it to a broader COVID-19 aid package that had already been negotiated by both parties. In the process, they have delayed and sabotaged a much-needed bill that would provide life-saving vaccine doses, therapeutics, and testing capacity, all because they insist on tying it to an extraneous measure that would expel asylum-seekers to harm. 

It is vital that legislators oppose this bill and work together to ensure it is never coupled to life-saving pandemic relief or otherwise allowed to become law. 

What is happening in the courts? 

As these cynical efforts are proceeding in Congress, conservative states are also going through the courts to try to prevent the Biden administration from unwinding Title 42. To be sure, the Title 42 order is a discretionary policy that the executive branch should have complete authority to end; but federal judges in conservative districts have issued a number of decisions blocking Biden administration policies since he took office, and the states no doubt hope the same will happen here. 

So far, there are worrying signs they will succeed. A federal judge in Louisiana recently issued a 14-day temporary restraining order forbidding the U.S. government from taking any steps to unwind or phase out the Title 42 policy in a systematic way over the following two weeks. This short-term order does not in itself block the administration from ending Title 42 on May 23, as they have pledged to do. But the judge said in the order that he expects the states to win on the merits of the case, signaling that he is likely to indefinitely block the U.S. government from ending Title 42, while the case proceeds in higher courts. 

The takeaway is that Title 42 will likely still be in effect on May 23 and beyond. Therefore, our work to end it must continue as well. There is some reason to hope we can prevail. An appeals court in a separate case challenging the legality of Title 42 recently ordered the U.S. government to partially restore access to humanitarian screenings at the border. While this order has not yet taken effect and stops short of fully restoring asylum, it would place limits on where and how the U.S. government can expel people under the policy.

Meanwhile, the Supreme Court recently heard a case concerning whether or not the Biden White House can end the “Remain in Mexico” policy—a similar executive branch policy that interferes with the right of asylum. The court’s ultimate decision in that case—expected in late June or July—will likely signal whether the administration will be permitted to end Title 42 as well. We will continue to closely monitor these legal developments until asylum has been restored and the human rights of people seeking refuge at our borders prevails.

Photo Credit: iStock—Narvikk

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