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AG Morrisey joins 14 other states to intervene in federal case allowing Title 42 immigration policy to end

MORGANTOWN – State General Patrick Morrisey has joined with 14 other states to intervene in a federal lawsuit that will allow the Title 42 immigration policy to end on Dec. 21. They’ve placed their request with the U.S. District Court for the District of Columbia.

The CDC wants to terminate Title 42, which has been in effect since March 2020 and has been used by both the Trump and Biden administrations to turn away migrants to try to keep communicable diseases out of the country. Title 42 has been used to turn away about half the illegal immigrants at the border; if it ends, the number crossing this year could be 1.5 million to 2 million, supporters of the measure have said.

The case is called Huisha-Huisha v. Mayorkas. In it, the plaintiffs sued U.S. Department of Homeland Security (DHS) Secretary Alejando Mayorkas.

The 15 states’ motion to intervene says the plaintiffs are purportedly subject to expulsion under Title 42 and allege Title 42 orders violate various federal laws, including the Administrative Procedure Act (APA), which governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rulemaking and provides opportunities for the public to comment on notices of proposed rulemaking.

The states’ motion explains that the D.C. court granted a preliminary injunction prohibiting DHS from applying the Title 42 process – including the CDC’s Aug. 2021 order to end application of Title 42 – to the plaintiffs.

The D.C. Circuit Court (a level higher than the district court) stayed the preliminary injunction and rejected the district court’s reasoning but said DHS “may expel the Plaintiffs, but only to places where they will not be persecuted or tortured,” and then remanded the case back to the district court for further proceedings.

Since then, the motion says, DHS has elected to end its defense of the case, which will allow Title 42 to expire.

“Defendants have made clear that they will not seek to stay that order beyond the few weeks they need to comply in an orderly fashion,” the motion says. “Thus, despite defending this lawsuit since January of 2021, the federal defendants have shifted course and abandoned their defense of Title 42. In essence, federal defendants have circumvented APA notice-and-comment requirements by abandoning defense of Title 42 and instead agreeing with plaintiffs on a December 21 end date.

“Because invalidation of the Title 42 orders will directly harm the states,” the motion says, “they now seek to intervene to offer a defense of the Title 42 policy so that its validity can be resolved on the merits, rather than through strategic surrender.”

Morrisey said in a release announcing the motion, “We will keep fighting the Biden administration’s utter disregard for protecting our southern border. Biden’s open border policy is a danger to our homeland, and we will do everything within the boundaries of the law to set this administration straight.”

The states argue that ending Title 42 will cause widespread harm, posing undue costs and burdens on them, including massive additional public education and public health costs.

They cite testimony from Border Patrol Chief Raul Ortiz who said that migrant flows are responsive to changes in border operations, including processing time and likelihood of release. “Unprecedented numbers of aliens are illegally entering the United States right now … more aliens are going through the southern border than we have seen in the last 20 years. … The southern border is currently in crisis.”

And the CDC said, “The flow of migration directly impacts not only border communities and regions, but also destination communities and healthcare resources of both.”

Allowing intervention will allow the states to make sure their interests are adequately represented, they say.

Arizona and Louisiana are leading the effort to intervene. The other states are Alabama, Alaska, Kansas, Kentucky, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Virginia and Wyoming.

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