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Summary

 

Long horizontal blue graphic describing the case brought by 24 states challenging the CDC's order terminating Title 42 on May 23rd.

Long horizontal blue graphic describing what has happened in in Arizona v. CDC so far, such as the Temporary Restraining Order preventing Biden administration from winding down Title 42 and pointing out the contradictions in some of the states' stance on Covid-19. The last part of the graphic notes that over 50 organizations signed onto an amicus brief detailing the horrific impact of Title 42 and calling for the end of the program.

On April 3, 2022, the States of Arizona, Louisiana, and Missouri filed this suit to challenge the Center for Disease Control’s announcement that it would be ending its Title 42 expulsion order as of May 23, 2022.  Under that order, most noncitizens seeking humanitarian protection have been summarily expelled, without the opportunity to apply for asylum, since March 2020, ostensibly to stop the introduction of COVID-19 into the United States. Other states were added to the case later, such that there are now 24 Plaintiff states. The States allege that the termination of the Title 42 expulsion order was done without going through the proper procedures.  

[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.]

Just a week after filing their motion for a preliminary injunction, the States filed an emergency motion for a temporary restraining order (TRO) requesting that the Court prohibit the Biden Administration from “early implementation” of Title 42’s end.  Judge Summerhays orally granted  the TRO request on April 25, which he followed with a four-page opinion. 

That (nationwide) TRO was in place until May 20, when Judge Summerhays issued an opinion and order granting the States’ preliminary injunction request, thereby prohibiting implementation of the CDC’s order ending Title 42.  A week later, Judge Summerhays denied a motion by Innovation Law Lab–a non-profit organization that had sought unsuccessfully to intervene in this case–to stay (pause) the preliminary injunction except as it relates to the 24 Plaintiff states. Innovation Law Lab then joined the federal government’s appeal, which remains pending.

The case is currently stayed (paused) at the district court until the appeal of the preliminary injunction opinion is fully resolved.

On November 1, 2022, the Plaintiff states filed a motion asking Judge Summerhays to sanction the federal government for what the states allege is a violation of the preliminary injunction: over the last several months, as conditions in Haiti have rapidly deteriorated, more Haitians have been able to come into the U.S. through the humanitarian exception in Title 42 (which was not enjoined/blocked), and fewer of them have been expelled back to Haiti (note that the United States is prohibited by law from sending migrants someplace where they are likely to be persecuted or tortured). The Plaintiff states allege that this situation amounts to the federal government effectively ending Title 42 for Haitians, in alleged violation of the preliminary injunction. The parties are still briefing that motion.

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 Judge Summerhays 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.

 

Technical Summary

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.

On the merits, Judge Summerhays’ TRO opinion states only the following: “The Plaintiff States have demonstrated a substantial likelihood of success on the merits with respect to their claims that the Termination Order was not issued in compliance with the Administrative Procedure Act.”  

Judge Summerhays’ PI opinion, meanwhile, is premised solely on the notice and comment claim.
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