In March, President Trump relied on a little-used public health rule to drastically restrict immigration at the United States’ land borders. President Trump determined that, because COVID-19 was present in Mexico and Canada, there was a serious danger that migrants might further introduce coronavirus into the United States. Although it applies to both borders equally, this new restriction has primarily impacted immigrants at the Southern border.
The Trump Administration relied on Title 42 of the United States Code Section 265— which codified the 1944 Public Health Act— to establish a summary immigration expulsion process. As of March 2020, those attempting to enter the United States without documentation at the border have been, and continue to be, summarily expelled. Rather than being held in detention centers or some other congregate area for immigration processing, immigrants are immediately be expelled to their country of last transit. This process, frequently referred to as the “Title 42 Process,” ignores the statutory regime ordinarily governing border arrivals and disregards the protections and procedures mandated by national and international humanitarian law for immigrants, especially unaccompanied minors and those seeking asylum. From March 2020 to October 2020, over 200,000 people have been expelled from the United States under Title 42.
The impetus behind the CDC’s order was allegedly preventing the spread of coronavirus within immigration detention centers and within the United States. However, the impetus for the regulation seemed to come from the White House directly. Top CDC officials originally refused to issue it as “there was no valid public health reason” for the regulation. Nevertheless, after Vice President Pence spoke directly to CDC Director Robert Redfield, the Title 42 Regulation was issued.
Public health experts widely condemned this regulation. As discussed further below, simultaneous policy decisions and subsequent revelations further undermined the Government’s public health justification. Many view the Title 42 regulations as pretextual. As the founder and former national director of the ACLU Immigrants’ Rights Project and former Senior Counselor to the Secretary of Homeland Security, Lucas Guttentag opined:
“The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.”
This post proceeds in three parts, first discussing the statutory authorization and legal foundation of the Title 42 regulation, next investigating the problems with the regulation, and finally addressing its potential revocation or modification.
Enactment of the Title 42 Regulation
Enactment of the Title 42 Regulation– statutory authority:
The Title 42 process was led by the Department of Health and Human Services (HHS) and its sub-agency, the Center for Disease Control (CDC). There are three critical components to the Title 42 regulations: a HHS rule, a CDC order implementing the HHS rule, and a Customs and Border Patrol (CBP) document issuing guidance to CBP agents regarding on-the-ground implementation. On March 20, 2020 the Department of Health and Human Services issued an emergency interim final rule that was released simultaneously with a CDC order pursuant to the IFR. Together, they set forth the new immigration procedures to be followed. After the CDC’s initial order was issued, U.S. Customs and Border Patrol (CBP) internally distributed an implementation memorandum, that was leaked to the public. The Trump Administration’s interim final rule was then finalized on September 11, 2020.
The majority of U.S. regulation of immigration is under Title 8, titled “Aliens and Nationality.” In contrast, Title 42 of the United States Code is titled “The Public Health and Welfare” and generally deals with the regulation of matters of public health and social welfare. The Trump Administration’s expansive interpretation of Title 42, particularly Sections 262 and 265, is unprecedented. The provisions relied upon have never been used in this manner before. Nor does it seem they were intended to be used in this way. As Professor Guttentag writes, the Trump Administration is the first administration to ever use Section 262 “as a substitute or mechanism for regulating admission under the immigration laws or for authorizing a noncitizen’s deportation or return to their home country.”
Enactment of the Title 42 Regulation—legal process:
As mentioned above, there were three key parts to the Title 42 process: HHS’s Title 42 regulation, the CDC’s order implementing the regulation, and CBP’s internal guidance to officers. Both the HHS rule and the CDC order were issued without notice and comment, under the “good cause” provision as interim final rules (IFRs).
IFRs are a unique rulemaking tool; they bypass the typical notice and comment requirements of the Administrative Procedure Act (APA). Ordinarily, when an agency wishes to issue a new rule, it must publish a Notice of Proposed Rulemaking in the Federal Register, providing notice to and seeking comment from the public. The agency must then base its final rule on the rulemaking record, including the comments submitted. However, when an agency finds for “good cause” that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”, they may proceed with an interim final rule. The rule is effective immediately upon publication. The public’s ability to comment is concurrent with the rule coming into effect; for example, the comment period for the Title 42 regulation ran from March 24–April 21. After the comment period expires, the agency will finalize the rule, in something known as a “final-final rule”. While agencies are supposed to incorporate the comments received into the final-final rule, there is relatively less judicial oversight of this process. The final-final rule– and HHS’s response to comments received– can be read here. After the final-final HHS rule was issued, the CDC re-issued its order as well.
Here, HHS and CDC explained that the risks posed by coronavirus and the need to act swiftly satisfied the “good cause” exception, allowing them to issue their regulations as an IFRs. While this may be true, are still a number of concerns with the use of IFRs. The use of IFRs has become increasingly widespread and recent Supreme Court precedent seems to have more broadly approved of the practice than ever before. IFRs permit agencies to act more quickly, without the same level of public comment or engagement. As one scholar writes “[P]ost-promulgation notice and comment are an inadequate substitute for pre-promulgation procedures that themselves are already a second-best proxy for the legislative process. Social science research and common sense suggest that, once an agency has begun administering a particular regulation, the agency’s interest in stability and continuity will discourage it from making changes in response to comments received. Perceptions that commenting will be futile discourage participation.” Further, sometimes, as with the Title 42 Process, use of IFRs may help an agency to sneak a more unpopular rule under the public’s radar or implement it more rapidly. Finally, there is less legal certainty about the remedies for an improperly issued interim final rule and the level of engagement that subsequent rulemaking must show with the comments after promulgation of the interim final rule.
At this point, the Title 42 regulation is a final-final regulation and can be challenged procedurally as well as substantively in court. The initial promulgation as an IFR continues to provide additional avenues for a procedural challenge.
Issues with the Title 42 Regulation:
The regulation is widely viewed as pretextual:
As the Title 42 regulation came into effect, the regulation was seen as increasingly pretextual. Initially, there was skepticism over the regulation from public health experts for a number of reasons. First, the measure was underinclusive as only a limited class of immigrants were impacted, allowing many others to still travel freely between the United States and Mexico. Second, so little was being done at the United States’ national level to slow the spread of COVID, that using Title 42 regulation as a way to derogate from humanitarian laws seemed even less credible. When the regulations were issued, the United States already had more confirmed coronavirus cases than any other country and community transmission was widespread. The same remains true today. Expert’s skepticism remained as Title 42 resulted in far higher numbers of migrants being turned away at the Southern Border throughout the spring and summer. Then, over the summer, ProPublica reported that virtually all children being expelled under the Title 42 process had to be tested for COVID-19 first under United States agreements with Latin American countries. Only those who test negative can then be returned to their home countries. Children who test positive are isolated in hotel rooms to recover. At the point of actually expelling minor children, Customs and Border Patrol knows that they are negative. They also are able to successfully isolate positive children. Taken together, this drastically undermines the Trump Administration’s given rationale. Finally, in the fall, the White House’s pressure on the CDC to issue the Title 42 regulations and experts at the CDC’s resistance became public, which further undermined the public health justification. Overall, the Title 42 Process seems to be largely pretextual, allowing the Trump administration to advance an anti-immigrant agenda and undermine legal protections for asylum seekers under the guise of public health.
HHS may lack statutory authority and the use of Title 42 like this is a vast expansion of power:
The Trump Administration’s use of Title 42 to regulate immigration should be carefully scrutinized, particularly as coronavirus continues to implicate so many facets of society, both in the United States and abroad. One of the primary arguments against the Title 42 Regulation is that it takes a relatively obscure public health law and uses it to regulate admission under the immigration laws. This is a novel interpretation of Title 42; if accepted, it vastly expands what can be done under the guise of public health. However, the statuory grounds of the regulation are currently being tested in court, as addressed below. If a sweeping interpretation of Title 42 is ultimately accepted, the President and executive branch will have unprecedented power to regulate as they see necessary to meet the challenges of coronavirus.
Immigration controlled by Title 42 may violate U.S. humanitarian obligations:
The Trump Administration’s actions suggest that in its estimation the public health Title 42 power overrides other, otherwise applicable, laws. This is most apparent when considering the United States’ incorporation of international humanitarian laws into the Immigration and Nationality Act (INA). Title 8 embraces the idea that any migrant, regardless of status, physically present in the United States is entitled to apply for asylum. Similarly, the United States has codified mandatory international obligations such as the protection of all persons physically present in the United States from torture. While the Title 42 Process allegedly allows immigrants to still apply for humanitarian protection, and HHS asserts that the United States is still in compliance with international protocol, the on-the-ground experience under the Title 42 regulations has shown these protections are stripped. The Customs and Border Patrol implementation memorandum provides a bare promise that if a noncitizen “make[s] an affirmative, spontaneous and reasonably believable claim” that they fear torture in the country they are being sent back to, the case should be sent to USCIS for an assessment.” Functionally, as recognized by hundreds of humanitarian organizations, this has resulted in the expulsion of migrants regardless of any potential asylum or other humanitarian claim. This is a violation of U.S. duty under international law.
On-going legal challenges:
Under the Administrative Procedure Act, the Title 42 regulation is subject to judicial review and can be challenged on both procedural and substantive grounds. Procedurally, the regulation can be challenged for failure to comply with the requirements of the APA. Since the Title 42 was issued as an interim final rule, this could include challenges to the use of the “good cause exception.” Another key potential procedural challenge is the failure to adequately address comments received during the notice and comment period. Substantively, the policy announced can be challenged as arbitrary and capricious. Additionally, there is a legal challenge to whether the CDC and HHS exceeded their statutory authority or violated other immigration laws by issuing the Title 42 regulations.
A number of these challenges are currently being raised in courts across the country. Elements of Title 42 have been challenged as part of ongoing monitoring of the immigration system, primarily in the Flores case. The Title 42 process is also being challenged in court by the ACLU, Texas Civil Rights Project, Center for Gender & Refugee Studies, and Oxfam. However, to date, most challenges have focused specifically on the application of the Title 42 Process to minor children. The current leading case is P.J.E.S. v. Wolf, which was filed as a class action after the government mooted out prior individual cases filed by the ACLU. As voiced in P.J.E.S., the ACLU is contending that “the administration is not authorized to issue the expulsion order under public health provisions in Title 42 of the U.S. Code — provisions that have rarely been used and never in this way. Title 42 does not permit expulsions of non-citizens who are in the United States, nor does it legally allow the removal of children.” As previously noted, the cases challenge both the statutory authority the Trump Administration relies upon and the application of Title 42 to individual plaintiffs. In response, the Trump administration has continued to claim this process is necessary to protect the public health and safety of United States residents and that they are lawfully authorized to take this action under Title 42. Their sole justification remains that Title 42 is necessary to prevent the spread of coronavirus. On November 18th, Judge Emmett Sullivan entered a preliminary injunction, enjoining the Government from continuing to apply the Title 42 Process to unaccompanied minors. While this is an important first step, more will be needed to ultimately dismantle the Trump Administration’s regulation.
What could be done to revoke or modify the regulation?
The unique structure of the Title 42 Regulation would allow President-elect Biden’s administration to swiftly end immigration regulation under Title 42. While walking back the HHS rule will require more procedure, as discussed below, the CDC order implementing he HHS rule can be terminated easily. The rule can be terminated as soon as the CDC director determines that “the danger of further introduction of COVID-19 into the United States [through the Title 42 covered immigrants] has ceased to be a serious danger to the public health, and continuation of the Order is no longer necessary to protect the public health.” Further, “[e]very 30 days, CDC shall review the latest information regarding the status of the COVID-19 pandemic and associated public health risks to ensure that the Order remains necessary to protect the public health. Upon determining that the further introduction of COVID-19 into the United States is no longer a serious danger to the public health necessitating the continuation of this Order, [the CDC director] will publish a notice in the Federal Register terminating this Order and its Extensions.” The only necessary predicate to terminating the CDC order is a finding that the covered immigrants are no longer a serious danger to the public health.
To vacate the underlying HHS regulation will be more complicated. Since the rule is finalized, the Biden administration has two primary options. First, the Biden administration’s HHS can issue a new rule, either revoking the former HHS rule or replacing it. Alternatively, Congress could act to revoke the rule under the Congressional Review Act. However, President Biden may be wary to use the Congressional Review Act, as it bans any future regulation that is “substantially similar” to the disapproved of regulation. Many predict that unwinding the Trump administration’s policies at the Southern Border is going to be a slow and complicated endeavor and President Biden may want to maintain as many options as possible.
However, even without undoing the HHS regulation, the CDC order provides vast discretion to the CDC director to end the Title 42 process. Importantly, the CDC director is appointed by the president, with the advice and consent of the Senate. The president can fire the CDC direct at will, and thus, the President has a great deal of influence over the CDC director. The heavy political pressure on the CDC and HHS to issue these regulations in the first instance underscores the role that political pressure can play, and the considerable influence President-elect Biden could wield over how the next CDC Director approaches the Title 42 process. Ultimately, since the CDC’s order must be reconsidered every 30 days and is subject to termination by the CDC Director, functionally ending the Title 42 process could be relatively immediate and straightforward. It remains to be seen what President-elect Biden intends to do, but if he wishes to undo the Title 42 process, he has the influence to do so.
 For a thorough discussion of interim final rules, see Micheael Asinow, Interim-Final Rules: Making Haste Slowly, 51(3) Administrative Law Review 703 (1999)