Huisha-Huisha v. Mayorkas

In March 2020, during the early days of the COVID-19 pandemic, the Trump administration established the “Title 42” policy, invoking a provision found in Title 42 of the United States Code for public health emergencies. The policy barred noncitizens seeking asylum in the United States, no matter how strong their entitlement to asylum. High-ranking officials at the Centers for Disease Control and Prevention (CDC) objected that there was no public health justification for this extreme step, but anti-immigrant White House officials including Stephen Miller pressured CDC to issue the policy.

On behalf of a class of noncitizen families facing expulsion, the American Civil Liberties Union, Texas Civil Rights Project, RAICES, Center for Gender & Refugee Studies, Oxfam, ACLU of Texas, and ACLU of the District of Columbia sued. The Biden administration maintained the ban. Plaintiffs obtained a court order blocking the expulsion of families in September 2021, on the grounds that the Title 42 statute did not authorize expulsions. The D.C. Circuit Court of Appeals put that order on hold, and then, on March 4, 2022, affirmed it in part and reversed it in part. The Circuit concluded that the statute likely authorizes deportations, but not to countries where a noncitizen will be persecuted or tortured. The court observed that the policy appeared to be “a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.”

In April 2022, the CDC issued an order terminating the Title 42 policy, explaining that there was no longer any public health justification for it. A group of States sued in Louisiana, however, and blocked the termination of the Title 42 policy on the ground that CDC had not elicited comments from the public before terminating the policy. The ACLU and its cocounsel returned to court to challenge the policy again, this time as a violation of the Administrative Procedure Act. On November 15, 2022, the D.C. District Court held the policy unlawful because it was arbitrary and capricious. The policy was scheduled to end on December 21.

After that order was issued, a group of states sought to intervene in the D.C. litigation and block the court’s order. On December 16, 2023, the D.C. Circuit rejected that effort, citing the “inordinate and unexplained untimeliness of the States’ motion” to intervene.

The States sought relief from the Supreme Court. On December 27, 2022, the Court temporarily blocked the district court’s order, and granted review of the question whether the States should be allowed to intervene in the case. After the Biden administration announced that the public health emergency that was the ostensible basis for the Title 42 policy would end in May, the Court took the case off the argument calendar.