On April 1, the Centers for Disease Control and Prevention (CDC) announced their decision to end Title 42, a policy enacted during the Trump administration which blocked asylum seekers from entering the United States due to the spread of Covid-19. This change is set to come into effect on May 23, 2022 and has been met with opposition from many sides, but Title 42 has been shown to be a misuse of the U.S. code that failed to achieve its original purpose.

Under Title 42 of U.S. Code, federal health officials have the ability to ban the entry of certain people or products into the United States during a pandemic. In the case of Covid-19, this gave the CDC the ability to restrict the entry of migrants seeking asylum in the U.S. Originally, the order was made as a thirty-day pause on immigration, which was then indefinitely extended after the first two months.

Pre-pandemic, asylum seekers were able to enter the United States, file for asylum, then stay in detention centers while their request was processed. When Covid-19 reached pandemic transmission levels, the Trump administration urged public health officials to enact Title 42 to block asylum seekers from entry. This was because allowing any new entries into the country, let alone keeping asylum seekers in close quarter detention centers, would lead to further spread of the virus.

Although the order officially came through the CDC, it received significant backlash for being a ploy of the Trump administration to restrict immigration to the U.S. under the misguided pretense of preserving public health. At the time, even the second-highest official at the CDC conceded that there was not sufficient public health rationale to justify the policy. The advocacy group Physicians for Human Rights has called Title 42 “a grave misuse of public health as a pretext to end asylum.”

Over 1.7 million migrants have been expelled from the U.S. since March 2020 under this order. In 27 percent of the cases in which Title 42 was used to expel migrants, the individuals who were expelled had attempted to cross the border at least twice. Prior to the implementation of Title 42, those caught migrating into the U.S. without documentation were forced to undergo formal removal proceedings, potentially even facing criminal charges, as they were being deported under U.S. law. However, during the era of Title 42, this process was forgone as individuals were being “expelled”, not “deported”, under public health guidelines and not U.S. immigration policies. Migrants who were expelled had no formal records of breaching U.S. regulations, which greatly lowered the risk associated with attempting to repeatedly illegally cross into the United States.

Since the announcement of Title 42’s end, the Biden administration has faced strong opposition from both sides of the aisle, albeit with the majority of backlash coming from the right. Republicans are engaging in common anti-immigration rhetoric and arguing that the administration is too soft on immigration. Some Democrats, on the other hand, are arguing that the administration is ill-prepared to deal with the inevitably overwhelming influx of immigrants that will attempt to enter the U.S. after two years of backup at the border.

Opponents have not hesitated to pursue formal action against this decision. A block of senators has introduced the Public Health and Border Security Act which would require that the Covid-19 state of emergency as a whole be lifted before the revocation of Title 42 and similar public health measures. Republicans further blocked a 10 billion dollar spending bill that would have contributed to the implementation of improvements to align with public health measures.

Three GOP-led states — Arizona, Louisiana and Missouri — filed a lawsuit against the CDC, Homeland Security, President Biden and several other immigration-related departments in a Louisiana U.S. district court challenging the discontinuation of Title 42. The forty-two page long court filing starts with the complaint that the states wish to “challenge an imminent, man-made, self-inflicted calamity: the abrupt elimination of the only safety valve preventing this Administration’s disastrous border policies from devolving into an unmitigated chaos and catastrophe.”

The official complaint spends a great deal of time waxing poetic about the bipartisan nature of this issue, citing both Republican and Democratic politicians who oppose the removal of Title 42 and granting anonymity to officials who wished to express comments such as “we are expecting to get wrecked,” referring to the imminent influx of immigrants at the border.

The complaint goes on to call the CDC’s termination order “profoundly illegal” on two grounds: first, the Administrative Protection Act, the APA, requires something called “notice-and-comment requirements” in which proposed rules must be opened up to the general public for comment before implementation. The CDC did not open up the termination order for public comment. Second, the complaint argues that the termination order is “arbitrary and capricious”, further violating the APA.

With these grounds comes the case’s fundamental flaw: the termination of Title 42 is not subject to notice-and-comment requirements under the APA as it was originally implemented without undergoing this process and was also given a sunset provision that established an end date which was amenable to extensions, but would not require a notice-and-comment requirement process to conclude.

Another flaw in this suit is its heavy reliance on Title 42 as an immigration policy, not a public health one. Title 42 was introduced to manage immigration flow, it was done under the pretense of Covid-19 spread prevention, a pretense which many renowned epidemiologists have even debunked over time. Even where the complaint does rely on Title 42’s nature as a public health measure, its argument relies on the fact that airplane mask mandates and vaccine requirements have not been lifted, therefore there are no grounds to establish that the pandemic has improved significantly enough to resume normal asylum procedures. The fact that we still need to wear masks in tight, enclosed spaces does not indicate that the country cannot handle the entry of new individuals, particularly when many of them are already vaccinated or are receiving vaccinations upon arrival. And, further, the argument that the continuation of vaccine mandates proves the pandemic has not ended is fundamentally flawed. These vaccinations are what have allowed the pandemic to become more manageable, and their ongoing use does not undermine the possibility of allowing new migrants into the country.

While the lawsuit certainly has its flaws and is based almost entirely on seemingly insignificant technicalities associated with the APA, if it were to move forward, this would not be the first time a lawsuit against the Biden administration succeeds on technical grounds. In April 2021, another Republican lawsuit against the Biden administration for discontinuing another Trump administration migration policy was successful, under the same legal logic that the Biden administration had not followed the proper procedures of the APA.

This leaves open the (very small) possibility that the court will demand the CDC revoke its decision to end Title 42 and follow the formal APA process before attempting to do so again. However, this is unlikely given the mischaracterization of Title 42 and its implementation. Even in the case that the CDC would be required to rescind their decision, they could very feasibly reintroduce the termination order after a short period of time in which they implement feedback from the case.

Regardless of the decision of this particular suit, it has been recognized that Title 42 was not a successful public health nor immigration measure. Title 42 did little to prevent encounters with migrants. During its enforcement, migrant encounters at the U.S.–Mexico border reached a two-decade peak with 200,000 encounters in July 2021. Nearly 10,000 cases of sexual assault, abduction, extortion and other crimes have been reported against individuals who were subjected to the Title 42 policy.

The order failed to protect asylum seekers from Covid-19 and other conditions, did little to limit spread in the United States and was questionably invoked as a pseudo-political move under the guise of poorly founded public health concerns. Removing Title 42, in tandem with other immigration reforms under the Biden administration including recent moves to streamline the asylum application process and reduce backlog in immigration courts, is an important step towards fixing America’s horribly broken immigration system.

Ahead of the upcoming November midterm elections, Republicans and Democrats both want to get on the “right” side of immigration issues and bolster public support for their parties’ policies. Removing Title 42 is the right thing to do. It will be unpopular among those who oppose immigration in general, as well as those who oppose the continuation of Covid-19 policies such as mask mandates on airplanes, but Title 42 must be brought to an end not only for the sake of asylum seekers searching for refuge within U.S. borders, but for the overall betterment of the U.S. immigration system and accountability for the way U.S. officials enact public orders.