Advocates are calling on the Biden administration to take an unusual approach in the legal battle over Title 42: Challenge a court ruling that blocks it from being lifted but otherwise cave to the court’s demands.
A ruling last week blocked the Biden administration from rescinding the Trump-era policy that denies migrants their right to seek asylum.
It’s a case not centered on the merits of the policy but whether the Biden administration followed administrative laws surrounding rulemaking.
Judge Robert Summerhays of the U.S. District Court in Louisiana‚ a Trump appointee, sided with states in determining the Biden administration had to launch a notice and comment process in order to nix the policy.
The Biden administration has pledged to appeal the ruling, and while advocates want them to take the additional step of seeking a stay to freeze the order, some also say they should just go ahead and get the rulemaking over with.
“I think Title 42 needs to end immediately. The quickest way to do that is to obtain a stay,” said Lee Gelernt, deputy director of the American Civil Liberties Union’s immigrants’ rights project.
“If the administration cannot obtain a stay then doing notice and comment quickly would be more immediate than allowing an appeal to go forward over months and possibly a year or more,” added Gelernt.
The decision by the court in effect requires the Biden administration to jump through more administrative hoops to wind the order than the Trump administration took in creating it. The policy was initially crafted not through rulemaking but through an emergency order.
Its status has been reviewed by the Centers for Disease Control roughly every 30 days since its inception – its impermanent nature and continual review something the government argues is key to why a formal rulemaking process isn’t required.
Even an eventual interim rule published by the Trump administration months into Title 42’s use required only a notice to terminate the policy.
Still, the court said Biden must complete the notice and comment rulemaking process required under the Administrative Procedures Act (APA), siding with states who say they have a right to comment on the policy shift.
Summerhays ruled the pandemic created circumstances that justified putting in place an emergency order without a formal notice and comment period, but its lifting should be done through the thoughtful process required by the APA.
“An agency’s response to a dangerous and largely unknown contagious disease may justify emergency action that dispenses with the normal rulemaking process,” wrote Summerhays.
“The same emergency conditions do not exist—or at least the CDC has not explained how such emergency conditions exist—with respect to terminating Its COVID-related orders based on improving conditions and allowing DHS to resume normal operations.”
Those who want to lift Title 42 see it as an unnecessary hurdle to return to what had been the status quo for decades.
“We’re now ready to return to immigration law as Congress has enacted it and as every prior administration has enforced it. Then I think you should be able to look at what they’re saying as a basis for why they want to return to the way we’ve always done things,” said César Cuauhtémoc García Hernández, an immigration law professor at Ohio State University.
The Biden administration faces hurdles in challenging the Louisiana court’s ruling.
The appeal in the case will head to the Fifth Circuit, one of the more conservative-leaning appeals courts.
This is an excerpt from The Hill.
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