White House struggles to explain the fate of Title 42

President Joe Biden has called for a bipartisan immigration policy since he stepped into office. He’s likely to make another appeal at Tuesday’s State of the Union.

But it’s questionable whether he’ll address the one Trump-era policy currently overseeing all others at the southern border, Title 42. That’s because the White House won’t fully explain where it stands.

Last week, the Biden administration declared the Covid-19 national and public health emergencies would come to an end on May 11. And it noted in a statement to Congress that Title 42 — which allowed the government to turn away asylum seekers on public health grounds — would end then, too.

But in the following days, the administration walked back that assertion — and refused to explain why, prompting confusion and furor among immigration groups.

“You have to have read half a dozen different Title 42 orders and court decisions and all the relevant statutory provisions” to understand the policy, said Aaron Reichlin-Melnick, policy director at the American Immigration Council. “It’s not exactly user friendly.”

The Biden administration is, by this point, used to being dogged over its immigration policies. But the current place it finds itself in with respect to Title 42 is uniquely confusing: a combustible combination of judicial challenges, public health considerations and acute political pressures.

Here’s our effort to break down where things stand:

What’s the latest?

The government has used Title 42 to turn away asylum seekers more than 2 million times for nearly three years. Until last week’s announcement, the policy’s fate was expected to be settled by the Supreme Court. Justices will hear arguments this month over a lawsuit filed by a group of Republican-led states trying to keep the measure in place.

When the White House announced it would end the public health emergency, it did so in a statement of administration policy against two Republican measures attempting to end the Covid emergencies immediately. The administration decried such an abrupt end, saying enacting both bills “would lift Title 42 immediately, and result in a substantial additional inflow of migrants at the Southwest.”

But the next day, Biden and his aides made things murky when they suggested the White House might have to wait on a Supreme Court ruling to know Title 42’s fate. White House press secretary Karine Jean-Pierre referred reporters to the Department of Justice. And the DOJ didn’t respond to POLITICO’s request for comment on its legal stance.

But as Reichlin-Melnick sees it, it’s simple.

“If you look at the Title 42 order from the CDC, which is currently in effect, that order on its face says that it shall no longer be in effect when the public health emergency expires,” he said. “That’s really it.”

What exactly is Title 42?

Section 645 of Title 42 of U.S. Code addresses public health, social welfare and civil rights. In March 2020, the Trump administration granted the CDC director power to issue orders implementing the Title 42 authority to turn people away at the border. This also notably gave the CDC director the power to determine when these orders would end.

Then-CDC Director Robert Redfieldissued the first order on March 20 just days after a national Covid emergency had been declared. Redfield extended the order for another 30 days in April. He renewed it indefinitely in May.

Flash forward to August 2021: The Biden administration — prompting a wave of backlash from immigrant advocates and Democrats — rolled out its own Title 42 order that remains in place today. But there was a notable change under this order: Now the policy could end in one of two ways — either via the expiration of the HHS public health emergency or the CDC director’s determination that it was no longer necessary, “whichever occurs first.”

So what’s the problem, especially once both emergencies expire?

In April 2022, CDC Director Rochelle Walensky announced the Biden administration would lift Title 42 restrictions, writing she “no longer found a public health justification” for keeping them in place. That prompted a group of GOP-led states to successfully challenge the decision, which left Title 42 in place.

Then came the curveball last November. In a separate case, a U.S. district court judge ruled the use of Title 42 was “arbitrary and capricious,” arguing it hadn’t been updated to align with the present state of the pandemic. The judge told the Biden administration it must wind down the policy by Dec. 21.

A group of 19 GOP-led states — many of the same states in the Fifth Circuit challenge — made a last-ditch bid to intervene in the case. Their move was rejected by the D.C. Circuit Court of Appeals. The states followed with an emergency appeal to the Supreme Court, and a divided bench agreed to temporarily keep the Title 42 order in place while it examined whether or not the states may intervene to challenge the district court’s order.

What’s next?

This brings us to today: A pending Supreme Court case and an end date to the public health emergency from the White House.

It’s unclear what the White House’s announcement around the end of the public health emergency means for the Supreme Court case, Reichlin-Melnick said. It’s expected the high court will move forward with scheduled arguments this month; he said the Supreme Court is unlikely to throw out a case simply because the Biden administration has announced a future date, one that could change between now and May 11.

But he and other experts say if the Biden administration really sticks to this timeline, the ongoing court cases appear irrelevant. That’s because the GOP-led states are trying to keep the August 2021 order in place, and that order is explicitly tied to the end of the public health emergency.

The handling of the border has been no easy task for the Biden administration — stymied by court challenges and a Congress unable to reach a deal on much-needed immigration reform.

David Bier, associate director of immigration studies at the Cato Institute, noted that May is one of the peak months for migration at the southern border, as the weather becomes ideal for travel.

Administration officials have continued to say they’re preparing for the policy’s end, rolling out new reforms — some of which rely on the expansion of Title 42 — to alleviate pressure at the border. But this preparation has been ongoing for two years, Bier noted, and it wouldn’t be all that shocking to see officials once again ask for more time.

They would have to issue a new Title 42 order not tied to the public health emergency, he said, though this would mean another load of lawsuits — and another load of criticism.

“Once they issue a new order,” he said, “it opens a whole new can of worms.”