The Biden administration announced this week that it plans to end the national emergency declaration tied to the novel coronavirus pandemic on May 11. The emergency declaration is set to expire sooner, at the beginning of next month, but is being extended until May 11 with a plan to end on that date. “The White House wants to keep the emergency in place for several more months so hospitals, health care providers and health officials can prepare for a host of changes when it ends, officials said,” The New York Times reported.
It raises an important question about future of other policies tied to the emergency declarations, like the Title 42 public health order that’s used the pandemic as an excuse to quickly expel asylum-seekers. The administration says that it seeks to end the policy—which had remained in effect due to GOP litigation—on that date too. But will it be able to? A top immigration policy expert says he believes an end to the national emergency declaration should mean an end to Title 42.
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Aaron Reichlin-Melnick, policy director at the American Immigration Council, writes in a Twitter thread that the Centers for Disease Control and Prevention, which under political pressure authorized use of Title 42 back in March 2020, has previously outlined how the policy should end. Either the emergency order ends it, or the agency ends it. “Republicans blocked the CDC Director from option 2,” he writes. “Blocking option 1 will be much harder.”
Even though Republicans this week passed a House bill actually called the Pandemic is Over Act, they successfully sued over the Biden administration’s attempt to end use of Title 42 public health order, running to the right-wing Supreme Court for help. Officials had planned to end use by Dec. 21 of last year, but that was blocked first by Chief Justice John Roberts, then the full court in a 5-4 decision (Neil Gorsuch joined the liberal justices).
The subsequent plan at that time was to hold oral arguments this month about whether the 19 Republican attorneys general even have standing to dispute the policy. But if there’s no more national emergency declaration, where does that leave the Title 42 public health order and all its related court stuff?
“The White House's decision to end the Public Health Emergency declaration could impact the Supreme Court's decision in the Title 42 lawsuit—possibly leading to the case being dismissed as moot,” Reichlin-Melnick continued. The Supreme Court has previously dismissed immigration-related cases under this administration, so it’s possible. “We didn't expect a decision in the case by May 11, anyway, so it may never come.”
Of course, never underestimate Republicans’ penchant for immigration-related lawsuits. Indicted Texas Attorney General Ken Paxton has perfected the dark art of shopping for just the right judge to issue rulings against Biden administration policies and changes. Could further Republican lawsuits block the administration’s attempt to lift the orders, even though Republicans introduced and passed something in the House called the Pandemic is Over Act? All the GOP lawsuits trying to overturn a whole presidential election tell us they’re capable of trying anything.
In its statement this week, the Biden administration said the May 11 date will help avoid “wide-ranging chaos and uncertainty throughout the health care system.” The administration said that the GOP’s attempt to quickly end the emergency order “would sow confusion and chaos into this critical wind-down.” Yup, that sounds exactly like Republicans.