WASHINGTON — More than a dozen Republican-led states asked a federal judge Monday night for permission to defend a pandemic-related border directive in court, after the judge struck down the policy and the Biden administration signaled it wouldn’t appeal.
The 15 states, which include frequent immigration litigants Texas and Arizona, have asked Judge Emmet Sullivan of the U.S. District Court for the District of Columbia if they could intervene in a challenge to the so-called Title 42 policy.
The border restrictions are currently set to end on Dec. 21 to comply with Sullivan’s ruling from last week that sided with immigrant advocates and found that the policy was illegal.
Rather than appeal the decision, the Biden administration asked for a five-week pause to prepare for the change in border policy. The Title 42 directive, first issued during the Trump administration at the start of the COVID-19 pandemic, allows border agents to rapidly “expel” migrants who cross the border, without considering their asylum claims.
The states argued in their Monday motion that they should be allowed to continue defending the Title 42 policy in court because the federal government has failed to “adequately represent the State’s interests in the continued validity of Title 42.”
“Federal Defendants have essentially abandoned their defense of Title 42, and it is doubtful that they will make any further arguments in support of it, let alone make all arguments that the States would press,” they said.
The states also argued that they have authority to defend the Title 42 policy because its termination will result in more migrants being released into the U.S., which will “impose financial burdens on the States involuntarily hosting them.”
Lee Gelernt of the American Civil Liberties Union, lead attorney in the case, said by email on Tuesday that the states “are transparently trying to use Title 42 to restrict asylum and not for the law’s public health purposes.”
“That is wrong and cynical,” he added.
Sullivan vacated the Title 42 directive in litigation brought by the ACLU against the government on behalf of migrant families.
The contested border directive was issued by the Centers for Disease Control and Prevention more than two-and-a-half years ago and has caused more than 2 million expulsions of migrants, many seeking asylum.
Sullivan, a Bill Clinton appointee, reasoned that the CDC did not fully consider how the policy would harm migrants seeking protection at the U.S. border as required. The judge later granted the government’s unopposed request for a five-week delay for his order to take effect, but noted that he did so “with great reluctance.”
The 15 states behind the motion are also part of a larger state group that challenged, in separate litigation in a Louisiana federal court, an attempt earlier this year by the Biden administration to voluntarily rescind the Title 42 policy.
In that case, Judge Robert Summerhays of the Western District of Louisiana, a Donald Trump appointee, ruled that the Biden administration’s memo terminating the Title 42 memo flouted administrative requirements and that the administration must keep the border expulsion policy in effect.
The administration has appealed Summerhays’ ruling, but government lawyers notified the appeals court last week that it planned to lift the Title 42 policy due to the Washington decision.
