Texas Sues to Block Removal of Pandemic-Tied Border Measures

On Friday the State of Texas filed suit against the Centers for Disease Control and Prevention (CDC), the Department of Health and Human Services (HHS), the Department of Homeland Security (DHS), Customs & Border Protection (CBP), Immigration & Customers Enforcement (ICE), and the heads of those departments and agencies. The case was filed in the Texas Southern District Court and was filed seeking to retain enforcement of the Title 42 border control measure enacted in response to the COVID-19 pandemic.

The State of Texas’ lawsuit notes that many regulatory rules and orders were issued in response to the COVID-19 pandemic, including interim and final rules that were issued by HHS and the CDC regarding immigration. 8 U.S.C. § 1182(a)(1)(A)(i) creates a class of inadmissible migrants who have a “communicable disease of public health significance.” This classification includes “if DHS has reason to believe they are “afflicted with” such a disease. 8 U.S.C. § 1222(a)” as well as if they “are coming from a country or have embarked at a place” where such a disease is “prevalent or epidemic.” Id” The determination that there is such an epidemic is delegated to the CDC under 42 U.S.C. § 265.

In March 2020, an interim final rule was made by the CDC, the complaint explained. This interim rule collected comments regarding the framework under which the order for 42 U.S.C. § 265 would be issued. After that final rule was then issued, the CDC issued an order which restricted the admission of migrants through the border due to the dangers in holding migrants in close quarters who might currently be infected with COVID-19.

On April 1, of this year, the director of the CDC terminated the final order from October 13, 2020, allowing migrants to once again approach the border without immediate expulsion. The State of Texas is protesting this order, stating that the order did not follow the requirements of the Administrative Procedure Act (APA) in allowing a comment period, as well as in making arbitrary finding which the plaintiff argues are inconsistent with other recent CDC rulemaking as well as not addressing the specific cost factors that the State of Texas will be incurred with the release of the restrictions.

The plaintiff is suing for injunctive relief, seeking to enjoin the termination order as well a determination is the order met the requirements of the APA.