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 was set to take effect on December 20, 2022, but was stayed by the Supreme Court when most of the Plaintiff States in this lawsuit sought to intervene in Huisha-Huisha for the purpose of appealing the vacatur of Title 42.
Briefing in this appeal concluded on September 21, 2022. Oral argument was scheduled for March 8, 2023, but three weeks before that, the Fifth Circuit stayed this case until May 11, 2023–the day on which this appeal could be mooted by the planned expiration of a COVID-related declaration of a public health emergency.
[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.
- 02/14/2023Order Staying Appeal Until May 11, 2023
Full Timeline and Documents
- 05/23/2022Appeal Docketed