The federal government is authorized to continue expelling illegal immigrants at the southern border under the public health policy known as Title 42 adopted by President Donald Trump. The US Court of Appeals for the District of Columbia Circuit ruled that the Biden administration may deny asylum to illegal crossers for public health reasons.
The government will not be permitted to immediately deport migrants back to countries of origin where their lives will be endangered. That requirement is likely to mean the government must implement additional screening of migrants before expulsion.
A three-judge panel of the federal appeals court issued a unanimous opinion that Title 42 grants the executive branch “sweeping authority” to protect Americans from a public health emergency. However, that power is constrained by the Convention Against Torture prohibiting deportation to countries where a migrant’s “life or freedom would be threatened.”
Trump’s Centers for Disease Control and Prevention issued the Title 42 policy in March 2020 at the onset of the COVID-19 pandemic. The CDC used authorization dating back to 1944 that authorizes the government to deny entry by foreigners to control the spread of infectious disease.
The lawsuit leading to last week’s order was brought by the American Civil Liberties Union last year, claiming that Title 42 violates other legal protections built into federal immigration laws. Last week’s ruling from the appeals court also sent the case back to the district court for further action.
The appeals court acknowledged that the ruling would mean additional migrants would be detained while additional screening took place. That cramped conditions would run counter to the public-health rationale supporting Title 42. The judges challenged the Biden administration’s continuing use of the policy without modifications, saying the procedure looks like a “relic” from past years with no vaccines, few therapeutics and greater uncertainty. The court said it should not “blindly defer” to the CDC under current circumstances.
The Biden administration has used Title 42 to expel more than one million illegal aliens despite intense pressure from the progressive leftist wing of the Democratic Party to discard the policy altogether.