WASHINGTON, DC – A federal judge on Tuesday struck down Title 42, one of former President Donald Trump’s signature border security measures, a policy that not even President Joe Biden has ended.
Trump implemented Title 42 during the Covid-19 pandemic, authorizing border personnel to turn away illegal border crossers because an unknown number of them are infected with the Chinese coronavirus.
Although illegal crossings from Mexico are at unprecedented levels – 2 million per year –estimates are that the number could double without Title 42.
Sullivan’s striking down Title 42 is especially surprising given that several days ago HHS Secretary Xavier Becerra extended the Covid-19 public health emergency, declaring that the virus continues to be a serious threat to the health of the American people.
Nevertheless, Judge Emmett Sullivan of the federal trial court in Washington, DC, held that Title 42 violates the Administrative Procedure Act (APA). Specifically, Sullivan held that Title 42 is “arbitrary and capricious,” meaning that it was not even the result of reasoned decision-making.
Arbitrary-and-capricious is typically an easy standard to meet under the APA. It requires commonsense measures like considering relevant evidence and reasons for making a change from prior policy.
The Clinton-appointed judge held that the federal government did not think through these factors. The government did not give “consideration of the negative impacts that the measures would have on migrants,” Sullivan wrote.
The Department of Justice can now appeal this decision to the D.C. Circuit. If the Biden administration refuses to do so, it is also possible that Texas or some other border state could ask the appeals court for permission to intervene in the case and take up the defense of Title 42.
Either way, an immediate stay reinstating Title 42 as this litigation proceeds could come either from the D.C. Circuit or from the Supreme Court.
The case is Huisha-Huisha v. Mayorkas, No. 21-cv-100 in the U.S. District Court for the District of Columbia.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.