Republican States Move To Retain Title 42 Border Policy

November 22, 2022


A group of 15 Republican state Attorneys General on Monday took legal steps to retain the border policy based on Title 42 of the U.S. health code that allows for the expulsion of migrants during the Covid pandemic.

Last week, U.S. District Court Judge Emmet Sullivan ruled the use of Title 42 to expel migrants was unlawful. The Trump Administration began the practice when Covid broke out and the Biden Administration continued it. Sullivan called the practice “arbitrary and capricious” in a 49-page opinion.

On Wednesday, Sullivan allowed the Biden Administration five weeks to delay ending expulsions in order to move additional resources to the border, and to coordinate with state and local governments and non-profits. 

But now, the GOP state Attorneys General have said in their motion to intervene that border states like Arizona and Texas would face “increased migrant flows” and that wherever migrants end up, “they will impose financial burdens on the states involuntarily hosting them.”

If Sullivan allows the states to intervene, they could challenge his decision to invalidate the policy at the U.S. Court of Appeals for the District of Columbia Circuit. The states could also take the matter to the U.S. Supreme Court, which currently maintains a conservative supermajority of Justices.

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