President Biden is attempting to reverse a Trump-era policy that prevented migrants from entering the country, even if they had grounds to apply for asylum. The program was ostensibly based on the ongoing health emergency caused by the novel coronavirus pandemic. President Biden now seeks to reverse that policy, but he’s facing resistance in the courts.

The Trump era was characterized by attacks on all forms of immigration, legal or otherwise. The former administration sought to reduce legal immigration, including limiting the grounds for seeking asylum and forcing applicants to wait in Mexico while their applications were pending. When the COVID-19 pandemic was at its height, President Trump and other anti-immigration advocates sought to scapegoat immigrants for their own botched handling of the situation. The former president invoked the administration’s authority under 42 U.S.C. § 265 to suspend immigration based on national health concerns, referred to as Title 42 expulsion. Specifically, the Trump administration used Title 42 to quickly expel migrants arriving at the border to stop the spread of COVID-19, without allowing them the chance to apply for asylum.

Although President Biden immediately sought to reverse many of the Trump-era immigration policies, Title 42 was not among them. In September 2021, the President disappointed immigration advocates when he renewed Title 42 after the Centers for Disease Control and Prevention issued an order justifying its use in light of the ongoing health emergency. Now that the pandemic has waned, however, President Biden has moved to lift Title 42.

Title 42 was set to expire on May 23, 2022. The CDC determined that the policy was no longer necessary to fight ongoing COVID-19 concerns. A cohort of 24 state attorneys general, led by Arizona, Louisiana, and Missouri, sued to keep Title 42 in effect. The states argued that the decision to terminate Title 42 was not made in accordance with proper notice-and-comment procedures required by the Administrative Procedure Act. The states cite damage to their health care and education systems should the borders suddenly open to a flood of new immigrants.

The Biden administration, for its part, argued that the plaintiff states lack standing to challenge the agency's action--as states, they are third parties with no direct interest in the enforcement of federal immigration laws against private persons. Even if they do have standing, the defense argues, the asserted injury to the health and education systems does not fall within Title 42’s “zone of interests,” which is limited to preventing the spread of communicable diseases. Finally, the administration argues that the matter is solely under the discretion of the CDC and not subject to judicial review.

On May 20, 2022, a federal judge in Louisiana granted the states’ request for a preliminary injunction. The court ruled that states are afforded “special solicitude,” which “relaxes the showing required for a state to establish standing.” Moreover, they have stated a cognizable injury traceable to termination of the program because relaxing immigration standards will increase border crossings, creating additional costs and burdens for the border states. Despite the administration’s contentions, the CDC’s order is subject to judicial review.

Because the court found that the states have a “substantial likelihood of success” on their claims that the CDC’s decision failed to follow proper administrative protocol, and based on the potential harm should the borders be reopened, the court granted the preliminary injunction. The federal government is not permitted to lift Title 42 until the case has been fully resolved.

The Biden administration intends to fight the injunction and pursue its right to lift the policy. Administration officials have concluded that Title 42 does nothing to help any persistent concerns over COVID-19. Dr. Anthony Fauci, the nation's leading expert on infectious diseases, has explicitly stated that Title 42 does not help to stem the spread of the coronavirus.