19 GOP-led states ask appeals court to delay end of Title 42 border restrictions

Washington — Nineteen Republican-controlled states filed an emergency legal request late Monday to try to delay the termination of pandemic-related restrictions that have allowed U.S. border authorities to swiftly turn away certain migrants on public health grounds.

A coalition of Republican attorneys general asked the U.S. Court of Appeals for the District of Columbia Circuit to suspend a lower court order that found the border restrictions, known as Title 42, to be unlawful. Unless it is paused, the lower court ruling will require border officials to halt the migrant expulsions on Dec. 21.

Lawyers representing the Republican-led states argued that Title 42's cancellation would fuel an "enormous disaster" along the U.S.-Mexico border, where federal officials intercepted migrants more than 2.3 million times in fiscal year 2022, a record high.

The Republican-led states asked the appeals court to issue a decision before Friday evening. That timeframe was supported by the Biden administration and the American Civil Liberties Union, which successfully challenged the legality of Title 42 at the lower court level.

If the appeals court denies their request, the states argued, it should issue a 7-day administrative suspension of the ruling that declared Title 42 illegal so they can ask the Supreme Court to intervene. The states that joined the request were Alabama, Alaska, Arizona, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

The states' emergency request is the latest twist in an intensifying legal and political battle over the fate of Title 42, which was first invoked at the outset of the COVID-19 pandemic by Trump administration officials who argued the measure was necessary to contain the spread of the virus along U.S. borders. 

Since it was authorized by the Centers for Disease Control and Prevention (CDC) in March 2020, Title 42 has allowed U.S. border officials to carry out over 2.5 million expulsions. Most of the expelled migrants have been sent to Mexico, which has accepted the return of its citizens, as well as migrants from Guatemala, Honduras, El Salvador and more recently, Venezuela. Migrants processed under Title 42 are not allowed to apply for asylum.

For over a year, the Biden administration defended Title 42, including in federal court, employing it as its main tool to manage unprecedented levels of unauthorized migration along the southern border.

In April, however, the CDC said it would stop authorizing the expulsions, arguing that pandemic conditions, including vaccination rates in migrants' countries of origin, had improved substantially. But a group of Republican-led states, many of which joined the emergency request on Monday, convinced a federal judge in Louisiana to block the rule's termination on technical grounds.

On Nov. 15, U.S. District Court Judge Emmet Sullivan declared Title 42 unlawful and voided the CDC directives that authorized the expulsions, saying the policy had not been sufficiently justified.

The Biden administration asked Sullivan to delay his ruling for five weeks and later filed an appeal to defend the legality of the Title 42 expulsion authority. But the administration did not seek to have the Dec. 21 termination date delayed, saying it was prepared to lift the restrictions.

In their emergency request on Monday, the Republican-led states argued they should be allowed to defend the legality of Title 42, accusing the Biden administration of colluding with the ACLU to end the policy.

"Defendants are thus employing strategic surrender to achieve results through collusion what they could not through rulemaking," the states said in their legal filing.

Despite the implementation of the Title 42 restrictions, migrant arrivals along the U.S.-Mexico border have reached unprecedented levels over the past year and a half.

In recent days, officials in El Paso, Texas, have recorded an average of 2,500 migrant arrivals per day. The sharp increase in illegal crossings there has severely strained the capacity of the federal government and local shelters to process and house migrants, leading to hundreds of migrants being released.