EXCLUSIVE: Federal Judge Explains Why He’s Blocking Biden Administration’s Termination of Title 42

A group of Mexicans walk back into Mexico after being returned halfway along the international bridge from the United States under Title 42, in Piedras Negras, Mexico, on April 21, 2022. Charlotte Cuthbertson/The Epoch Times

Update: The judge issued the temporary restraining order.

Original story below.

A federal judge is blocking the Biden administration’s attempt to terminate Title 42 because states that sued the administration are poised to succeed in their claims that the move violated federal law, according to a transcript of a closed-door status conference obtained by The Epoch Times.

U.S. District Judge Robert Summerhays, a Trump appointee, announced on April 25 his intent to enter a temporary restraining order that forces the administration to keep enforcing Title 42, an emergency order that enables quick expulsion of illegal immigrants due to concerns that they may have COVID-19.

In a hearing that day, Summerhays said the plaintiff states, which include Missouri and Louisiana, have demonstrated that the federal government likely violated the Administrative Procedure Act (APA) with its April 1 announcement that the emergency order would be terminated in May, according to the transcript.

“I also find that the record supports a showing of immediate and irreparable harm. The states contend that the termination of the Title 42 suspension orders will result in increased costs and burdens, including increased healthcare costs. The Court concludes that the record supports these allegations and that the fact of those increased costs is sufficient to support injunctive relief,” Summerhays said.

“The Court also finds, as far as the balance of harms, that a temporary restraining order restoring the status quo to immediately prior to the April 1st order will result in little injury to the defendants, and that any such injury is outweighed by the injury caused by a result of the implementation of the April 1st order without the states having an opportunity to fully vet their APA claims, and that a temporary restraining order will not disserve the public interest.”

The states had argued in filings that the Biden administration wouldn’t suffer from a block against scaling back the order, since the administration itself delayed the termination until May 23.

The government said in a counter-filing that it was boosting expulsion under Title 8, a federal law, in preparation for Title 42 officially ending, but urged the court not to grant the request for a restraining order.

“The purpose of delaying implementation of the Termination Order is to allow time for DHS to operationalize before May 23,” government lawyers said in a brief. The Department of Homeland Security (DHS) “cannot simply flip a switch on May 23.”

While Summerhays said he'd enter the restraining order, he hasn’t yet done so. That’s because he took issue with some of the language proposed by the states, and out of a desire to ensure the order doesn’t interfere with the “legitimate use of law enforcement discretion” afforded to immigration enforcement officials. He offered that he wanted the order to, “in the least disruptive way” address the states’ concerns.

Summerhays directed the parties to confer and try to reach an agreement on certain issues and, if they couldn’t, he said they would hold another status conference to hammer out the differences.

It remains unclear when the actual order will be issued.

While the Department of Justice declined to comment on the judge’s decision, a senior administration official reportedly told news outlets in a call that the administration would obey the order once it was issued.

“The Department of Justice will need to review any rulings before commenting—there’ll be something more formal, is our expectation—and they would discuss any next legal steps or interpretation of the ruling, so we’ll leave that to them,” White House press secretary Jen Psaki told reporters in Washington.