The Justice Department announced on Friday it would appeal Summerhays’ decision, although the restrictions are unlikely to be lifted by Monday as planned. The administration will comply with the court order while the appeal is processed, White House press secretary Karine Jean-Pierre said in a statement, adding that the White House is not d agree with the decision.
“As the appeal progresses, the Department of Homeland Security will continue to plan for the eventual lifting of Title 42 in light of the CDC’s public health judgment, in which case anyone who attempts to unlawfully enter the country will be subject to the Title 8 expedited removal process, if they have no reason to remain in the United States,” said Jean-Pierre.
But inside the West Wing, the reaction was much more mixed – with some Biden aides breathing a sigh of relief.
The situation on the southern border had become a political mess for the White House, with Republicans raising the possibility of a massive increase in the number of migrants crossing from Mexico to the United States. Even some Democrats had openly questioned the White House’s decision to end the policy, arguing that the country’s immigration system would not be ready to handle the influx, while also worrying about the political ramifications at mid-term.
And the White House also carefully recorded its objections on procedural grounds that the power to set policy should rest with the CDC, not the courts. That thought — much like the administration’s call for the decision to rescind the mask mandate on public transportation — was to preserve the power to reenforce such measures should the pandemic worsen in the coming months.
But, overall, Biden aides felt they had been placed in a no-win situation: If Title 42 is rescinded, the resulting flood of migrants could create a Republican talking point. But conversely, leaving it in place could frustrate immigration activists and parts of the Democratic base who believe asylum seekers should be allowed in, further depressing party enthusiasm ahead of what could be a tough election year.
Biden has tried to revamp the immigration system and end Trump-era deportation policies, such as Title 42. He kept the policy in place after taking office, citing a raging pandemic .
On Friday, Republicans applauded the court’s decision.
“The court made the right decision to keep Title 42 in place. Ending Title 42 would be a complete disaster for a nation already suffering from the Biden border crisis,” Sen. John Barrasso (R-Wyo.), Chairman of the Senate Republican Conference, said in a statement. “We have a humanitarian, public health and national security emergency occurring on our southern border. Our Border Patrol agents are overwhelmed by a rush of illegal immigrants crossing the border every day. The president was repeatedly warned not to end Title 42. He ignored those warnings.
After the CDC announced its intention to lift the restrictions last month, a growing chorus of bipartisan lawmakers accused the administration of not having a plan in place to deal with a border push once the policy expires. Senator Mark Kelly of Arizona, one of the Democrats who hammered the White House for not having a post-title 42 game plan, said Friday that “Arizonans have paid the price for Washington’s failure. to plan ahead and secure the border”.
“Today’s decision does not change the fact that there is a crisis at the border and that there must be a detailed plan that can be implemented before Title 42 is lifted. Arizona deserve a safe, orderly and humane border response and I will continue to hold the administration accountable for that,” Kelly said in a statement.
Summerhays’ decision, while expected, was a blow to immigration advocates and some Democrats, who have intensified pressure on the administration to drop the policy in recent months amid cases of Covid have plummeted across the United States. Lawyers and lawmakers have expressed concern that Title 42 is being used not as a public health measure, but as a way to control the influx at the border.
The Congressional Hispanic Caucus called the decision “outrageous” and “ridiculous” and said lawmakers must pass immigration reform, as Biden has called for.
“Today’s Federal Court decision on Title 42 is outrageous, ridiculous and erodes our asylum system. Title 42 is a public health emergency policy that can be initiated and terminated by an administration. This is no way to manage the border. Further, Title 42 denies asylum seekers their legal rights under U.S. law to due process in the United States and runs counter to international humanitarian norms and values,” said President Raul Ruiz ( D-California) in a statement.
But another court order places some limits on Summerhays’ decision, said Lee Gelernt, deputy director of the ACLU’s Immigrant Rights Project and lead counsel in the Title 42 lawsuits in Washington, DC.
On March 4, a three-judge panel at the DC Circuit Court unanimously ruled that the CDC could use Title 42 to deport migrant families — but not back into harm’s way without giving them the opportunity to seek protection from persecution and torture. Even though the Louisiana court has now blocked Title 42 from being lifted on Monday, Gelernt said, the DC Circuit Court’s order will prevent it from being used to deport migrant families to persecution or torture.
Krista Mahr and Marianne Levine contributed to this report.