This is an appeal of a district court’s order preliminarily enjoining (blocking) the Biden Administration’s attempt to end the Title 42 expulsion policy, under which most migrants at the southern border seeking asylum have been summarily expelled back to Mexico, ostensibly to prevent the spread of COVID-19.
The Trump CDC issued the first such order in March 2020, and the Biden Administration largely kept that policy in place until March 2022, when it announced that the policy would expire on May 23, 2022. Led by Arizona, twenty-four states filed suit, claiming that the termination of the Title 42 expulsion policy did not adhere to required procedures. On May 20, 2022, Judge Summerhays of the Western District of Louisiana granted the states’ request to preliminarily enjoin the termination of the Title 42 expulsion policy while the case proceeds to final judgment. The federal government then appealed.
A few days later, Innovation Law Lab–a non-profit organization that provides services to asylum seekers–also filed an appeal. The organization had sought unsuccessfully to intervene in the case at the district court (meaning it requested to be added to the case as a defendant). After filing its appeal, Innovation Law Lab requested that the Fifth Circuit stay (pause) the preliminary injunction except as it relates to the 24 Plaintiff states (in other words, it objected to the injunction being nationwide). That request was denied on June 16, 2022.
Meanwhile, on November 16, 2022, and in a separate case (Huisha-Huisha) brought in the District of Columbia, the Title 42 policy was held unlawful and vacated. That decision will take effect on December 20, 2022. On November 17, the federal government informed the Fifth Circuit of the Huisha-Huisha decision and that DHS has begun preparing to stop enforcing Title 42 as of that date. Most of the Plaintiff States in this lawsuit are now trying to intervene in Huisha-Huisha, where they plan to appeal that district court’s decision that Title 42 is unlawful.
[Note that because Arizona is listed first in the complaint, we (per the convention) refer to this case as Arizona v. CDC; however, because it was filed in Louisiana, it is sometimes referred to as Louisiana v. CDC.]
The States allege that the termination violated the Administrative Procedure Act’s notice and comment requirement and its prohibition on arbitrary and capricious agency action. In their motion for a preliminary injunction, the States argued that they are likely to succeed on both of their claims, but Judge Summerhays held only that they were likely to succeed on the notice and comment claim, without reaching the arbitrary and capricious claim.
Full Timeline and Documents
- 05/23/2022Appeal Docketed