The Centers for Disease Control and Prevention (CDC) recently issued a decision terminating the long-standing public health order — known by its statutory chapter, Title 42 — that suspends the entry of migrants into the U.S. to reduce the spread of COVID-19. The termination was to go into effect on May 23, 2022. Since its inception, many decried the original order as a guise for closing our southern border to asylum seekers; for most other noncitizens, all travel suspensions were lifted by exceptions and exemptions. On its face, President Biden finally fulfilled his campaign promises to cease using the public health order to deter migration. Still, the way the administration went about it after 15 months suggests that the effort was nothing more than a hollow grab at political capital.
Last week, the attorneys general of Arizona, Louisiana, and Missouri filed suit in the U.S. District Court for the Western District of Louisiana Lafayette Division, challenging the Biden administration’s revocation of Title 42. Among a good bit of fear-mongering and conjecture, the complaint advances a significant challenge on the grounds that the termination is subject to the notice-and-comment requirements of the Administrative Procedures Act (APA) and that the order violated them.
Herein lies an interesting legal debate tucked into a footnote in the termination:
While this Termination is not a rule subject to notice and comment under the APA (5 U.S.C. § 533), the Office of Information and Regulatory Affairs has determined that this is a major rule as defined by Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996, also known as the Congressional Review Act (CRA). 5 U.S.C. § 804(2). The agency finds, for the reasons listed above, that good cause exists to make this rule effective on May 23, 2022, under 5 U.S.C. § 808(2). Footnote 185.
In the footnote, the CDC is essentially claiming that the order is not subject to the APA but is subject to CRA, which requires an agency to submit to the House and Senate a copy of the rule, a statement indicating whether it is a major rule, and its effective date at least 60 days in the future. It’s important to note that nothing in this process prevents the publication of the rule in the Federal Register, meaning that the agency could have simultaneously effectuated a notice-and-comment period under the APA.
The CRA lays out procedures for Congress to reject agency rulemakings using a “fast-track” that circumvents bottlenecks in the ordinary legislative process — for example, by allowing 30 senators to effectively force the issue out of committee and by preventing use of the filibuster. If both houses pass a so-called “disapproval resolution” on a proposed regulation and the president signs on or his veto is overridden, the rulemaking is dead. Courts have generally deferred to language in the CRA warning them to stay out of disputes (though a few judges have ruled that they can review whether agencies are complying with the law).
All this suggests that the administration was earnestly looking for litigation-proof ways to end Title 42. Except that there appeared to be no coordination with Congress before CDC issued the termination order. In fact, five key Democratic senators — Kyrsten Sinema, Mark Kelly, Maggie Hassan, Jon Tester, and Joe Manchin — recently joined a bill requiring some kind of plan that helps the federal and state governments prepare for the termination order and requires the Surgeon General to lift the public health emergency in the U.S. before ending Title 42. Six House Democrats support a nearly identical version of the Senate bill. Sen. Catherine Cortez Masto (D-NV) said in a statement to Politico, “This is the wrong way to do this [end Title 42] and it will leave the administration unprepared for a surge at the border.” Sen. Raphael Warnock (D-GA) voiced his support for eventually lifting Title 42, but only after the administration presents a “plan for how it will ensure our border security has the manpower, infrastructure, humanitarian and legal resources they need to prevent this policy change from making an already dire humanitarian situation worse.”
Does this mean a disapproval resolution may be in the works? At the very least, it suggests that the White House did nothing to prepare Congress for the termination — or to ensure legislators would not fast-track a disapproval vote.
To be sure, there are impacts to prepare for, but they are impacts the U.S. unquestionably can build the capacity to handle. In the CDC’s termination order, the agency acknowledged that “the resumption of border operations … and the need to put additional appropriate COVID-19 mitigation measures in place, requires time to operationalize in a manner that protects the health and safety of the migrants, workforce, and American communities.” Although there are several nods that indicate that “important steps” are being taken to effectuate these changes, the order offers no substance on what those steps are — to its detriment.
One of the primary reasons that the APA requires a notice-and-comment period is to allow outside experts to help fill in these critical gaps and give lawmakers and the public a sense of how agencies are preparing for an impending regulatory move. Even though the termination dismisses the application of the APA in the case of this rule, it does offer a justification for why, even if the APA did apply, it qualifies for an exception. And here, we see the distinct holes in its rationale.
In the CDC order, the administration cites the “good cause” exception in 5 U.S.C. § 533(a)(1) as a rationale for bypassing the notice-and-comment period, but the justifications fall comically short on substance. The order states,“In light of the [order’s] significant disruption of ordinary immigration processing and DHS’s need for time to implement an orderly and safe termination of the order, there is good cause not to delay issuing this termination […].”
It seems like the CDC is talking out of both sides of its mouth. On the one hand, there is much to be done to prepare for the termination of the order, which the CDC acknowledges will cause significant disruption. And on the other, there is no time to think through what those changes may be or let the public know how we plan to deal with them in advance.
Indeed, the initial promulgation of Title 42 without notice and comment was reasonable grounds for a good-cause exception — we were on the precipice of a life-altering pandemic. But the administration has had ample time to take public comment since then and help prepare to manage the number of asylum seekers the U.S. must process under our immigration laws. Though the order suggests that public comment will offer little substantive feedback, that is a moot point. Notice-and-comment periods do not have a minimum threshold for cerebral or pensive responses — just comments. And given that the administration acknowledges the complicated nature of lifting Title 42 but has offered up zero guidance on how to mitigate those impacts, it sounds like officials need all the help they can get.
All of this begs the question — was Biden’s termination of Title 42 meant to appease those pushing for asylum seekers to be let back into the country without actually preparing to achieve that end? Kind of seems like it.
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