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Alaska Opposes Termination of Title 42 by the CDC

Apr 14, 2022

Today, the State of Alaska joins a coalition of states to challenge the Center for Disease Control’s (CDC) termination of Title 42, which was introduced in March 2020 as the Trump Administration dealt with the onset of the coronavirus pandemic in the US.

The lawsuit argues that the Biden Administration’s unlawful termination of the Title 42 policy will significantly increase illegal immigration into the United States.

Two years ago, on March 24, 2020, the first Title 42 Order was issued. The CDC published a final rule on September 11, 2020, which established final regulations under which the Director of the CDC may suspend the right to prohibit the introduction of persons into the United States to avert the severe danger of introducing a quarantinable communicable disease into the United States.

The lawsuit alleges the Termination Order’s timing will significantly exacerbate an already extant meltdown of operational control at the southern border. Press reports state that the Biden Administration has internally predicted that the daily number of illegal immigrants unlawfully trying to enter the United States could nearly triple because of the termination of Title 42. This unprecedented surge will overwhelm states’ capacity to enforce immigration laws at the border.

President Biden reversed President Trump’s other successful border policies, including the Remain in Mexico policy and the Safe Third Country agreement. Despite record-high border crossings, deportations under President Biden have dropped to the lowest levels in Immigration and Customs Enforcement history.

States bear many of the consequences of unlawful immigration. However, states are limited in their ability to engage in their immigration enforcement activities and thus rely significantly on the federal government to fulfill its duties under the immigration laws.

“The Termination Order is detrimental to the states tasked with enforcing immigration standards, and it is not logically appropriate,” says Alaska Governor Mike Dunleavy. “This policy runs contrary to the Biden Administration’s other declarations because it is expressly premised on the decrease of COVID-19, but the Administration has ignored these facts by enforcing mandatory vaccination and mask mandates.”

The lawsuit alleges that the CDC’s refusal to provide notice and comment violates the Administrative Procedure Act and requires the Termination Order to be invalidated. The Termination Order should also be invalidated because it represents arbitrary and capricious decision-making. It fails to consider the costs to the States, such as increased health care costs for aliens infected with COVID-19 and the cost of increased illegal immigration. It also failed to consider the States’ reliance interests, including whether the States relied on the continuation of the Title 42 policy in determining how to marshal and distribute their resources to address the public health, safety, and economic effects of the COVID-19 pandemic.

The Biden Administration’s violation of notice and comment requirements in the immigration context is now notorious with federal courts. Justice Kagan recently observed another potential violation by the Administration, explaining that “[t]he real issue to me is [the] evasion of notice and comment.”

“The Biden Administration can’t seem to stay within the lines established by Congress and the Constitution, forcing states with limited resources to continually push back through court actions,” Attorney General Treg Taylor states. “It seems like every day we learn of a new mandate from the Biden Administration that undermines personal freedoms or jeopardizes the livelihood of States.”

Alaska joins Arizona, Louisiana, Missouri, Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Utah, West Virginia, and Wyoming in this action against the CDC.

View the Title 42 Preliminary Injunction here.

View the Title 42 First Amended Complaint here.