Appeals court rejects bid by GOP-led states to keep Title 42 border policy in force

By Tierney Sneed, CNN

A federal appeals court on Friday rejected a bid by several Republican-led states to keep the so-called Title 42 rule in force, after a district court struck the controversial Trump-era border policy down.

The new ruling from the DC Circuit US Court of Appeals sets the stage for the case to go to the Supreme Court. The Biden administration is set to stop enforcing Title 42 — which allows for the expulsion of migrants at the US-Mexico border — on Wednesday.

The Republican-led states previously indicated that if the appeals court ruled against them, they’d seek the intervention of the Supreme Court.

In the new order, the DC Circuit denied the states’ request to intervene in the case and dismissed as moot the states’ request that it put the lower court’s ruling on hold.

The unsigned order was handed down by a circuit panel made up of an Obama appointee, a Trump appointee and a Biden appointee.

They wrote that the “inordinate and unexplained untimeliness” of the states’ request to get involved in the case “weighs decisively against intervention.”

The case is a lawsuit the American Civil Liberties Union, representing several migrants brought In January 2021 challenging the program. The appeals court noted on Friday that the Republican-led states had long known that their interest in keeping the policy in force would diverge from the Biden administration’s approach to the case.

The appeals court wrote that “more than eight months ago, the federal government issued an order terminating the Title 42 policy.”

“Yet these long-known-about differing interests in preserving Title 42—a decision of indisputable consequence—are the only reasons the States now provide for wanting to intervene for the first time on appeal,” the DC Circuit said. “Nowhere in their papers do they explain why they waited eight to fourteen months to move to intervene.”

The ACLU attorney representing the migrants praised the court’s decision.

“The states are clearly and wrongly trying to use Title 42 to restrict asylum and not for the law’s intended public health purposes,” the attorney, Lee Gelernt, told CNN in an email. “Many of these states were vigorously opposed to past COVID restrictions but suddenly believe there is a need for restrictions when it comes to migrants fleeing danger.”

White House spokesperson Abdullah Hasan said after the ruling that the administration has a “robust effort underway” for managing the border following the policy’s expected lifting next week.

“To be clear: the lifting of the Title 42 public health order does not mean the border is open. Anyone who suggests otherwise is doing the work of smugglers spreading misinformation to make a quick buck off of vulnerable migrants,” Hasan said in a statement. “We will continue to fully enforce our immigration laws and work to expand legal pathways for migration while discouraging disorderly and unsafe migration. We have a robust effort underway to manage the border in a safe, orderly, and humane way when Title 42 lifts as required by court order.”

The White House also urged Republicans in Congress to agree to more border funding and work on comprehensive immigration reform. The Biden administration has asked Congress for more than $3 billion as it prepares for the end of Title 42 to help shore up resources for border management and technology.

The administration’s handling of Title 42, which the Trump administration put in place during the Covid-19 pandemic, has been the target of litigation from both supporters and opponents of the program.

Last month, US District Judge Emmet Sullivan struck down the program. But Sullivan put his ruling on hold for five weeks so that the Biden administration would have time to prepare for the policy’s wind down. The administration has also appealed the ruling, arguing that the program was lawful, even if federal public health authorities have determined it is no longer necessary.

As the December 21 deadline for Sullivan’s ruling to go into effect approaches, officials have been preparing for a surge of migrants. More than 1 million migrants have been expelled under the rule, which is a public health authority the Trump administration began using at start of the Covid-19 pandemic to expel migrants before they went through the asylum application process.

Republican-led states, in their attempts to intervene in the case, allege that allowing the policy to terminate would “cause an enormous disaster at the border.”

They have argued that the “greatly increased number of migrants that such a termination will occasion will necessarily increase the States’ law enforcement, education, and healthcare costs.”

The Biden administration opposed the states’ attempt to intervene and their request to keep the policy in place, calling the requests untimely and unjustified.

“The States could have sought to intervene after the CDC acted to terminate the Title 42 orders in April 2022,” the administration wrote.

The migrants who challenged the program in the case also opposed the states’ request, writing in a court filing that the states were “transparently interested in Title 42 as a restriction on immigration and asylum” rather than as a public health measure.

The Biden administration tried to wind down the Title 42 program earlier this year, but a coalition of mostly GOP-led states — in a separate case filed in Louisiana — successfully sued to block the Department of Homeland Security from ending enforcement.

This story has been updated with additional details.

CORRECTION: An earlier version of this story incorrectly stated when the Biden administration announced its intention to end Title 42. It was in 2022.

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CNN’s Arlette Saenz contributed to this report.