Federal judge blocks for now Biden administration from lifting Title 42
Source: CNN
(CNN) A federal judge in Louisiana has for now blocked the Biden administration from ending a Trump-era pandemic restriction, known as Title 42, at the US-Mexico border, thwarting plans to terminate the controversial public health authority. Since taking office, President Joe Biden's administration has continued to rely on Title 42, a public health authority invoked at the onset of the coronavirus pandemic that allows border officials to turn migrants away at the US-Mexico border. In early April, though, the US Centers for Disease Control and Prevention announced plans to terminate the order.
The CDC said at the time it's no longer necessary given current public health conditions and the increased availability of vaccines and treatments for Covid-19. The decision sparked a flurry of criticism by Republicans and Democrats amid heightened concerns over a migrant surge when the authority lifts. But just days away from Title 42 ending this month, Judge Robert Summerhays of the Louisiana Western District Court found that the Biden administration didn't follow the right procedures in ending the authority and argued that while the administration may invoke an action under emergency conditions, those may not apply with respect to terminating it.
"Simply put, the CDC has not explained how the present circumstances prevented the CDC from issuing the Termination Order through the required notice and comment process under the APA," Summerhays wrote, referring to the Administrative Procedure Act. The termination of Title 42, the judge concluded, is not exempt from the notice and comment process, which can potentially take months. The public health authority, which has been fiercely criticized by immigrant advocates, will remain in effect for now. Lee Gelernt, ACLU attorney leading lawsuits against Title 42 in Washington, DC, called the ruling "wrong."
"The ruling is wrong, inconsistent with the considered judgment of the CDC, and should be immediately appealed by the administration. The lawsuit is the height of hypocrisy; the States that brought it seem only to want COVID restrictions when it comes to asylum seekers," he said in a statement. Notwithstanding this injunction, a parallel injunction in DC prohibits the use of Title 42 to expel families who would face persecution or torture," Gelernt added. CNN reached out to Justice Department for comment.
Read more: https://www.cnn.com/2022/05/20/politics/title-42-biden-us-mexico-border/index.html
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is that the DACA E.O. directed the creation of a "new Rule (regulation) ", and the previous administration wanted it rescinded, which requires the extended process... Eventually the courts put a permanent stay on it and it was phased out last year.
In this case, this public health regulation was created after the PHS Act was signed into law in 1944 and the administration is not "getting rid of it", but just allowing the expiration of the "trigger order" that was first implemented in May 2020 (that had to be periodically renewed to stay in effect), to expire.
I.e., CDC has now declared that there is no longer a "health emergency that justifies use of the provision" and will no longer extend the previous "health emergency" order. And an earlier court agreed. But this RW court decided that "mandates" are OKIYAR and want to be hypocrites demanding one. 
Last edited Sun May 22, 2022, 08:51 AM - Edit history (1)
Title 42 is literally huge. And a lot in it seems ignored in this ruling. I think. Maybe it's supposed to be ignored.
Maybe it's just pieces of Title 42 that this judge is ruling on. Okay. If so, media don't make that clear enough.
Some reading around the rest of Title 42 itself makes me wonder about the larger political spending map, which, imo, kinda looks like a map of the weeds. Which is where spending other people's money usually is done. Maybe it's all relevant to this ruling, maybe not. The arguments the judge is hearing might or might not be relevant to what the merits are in the judge's ruling.
The dot gov site says versions got passed anywhere from 2012 to 2017 (which is confusing enough). It might have been amended because one source (smirkymonkey) includes 162 "chapters" of regulation, while another (Wikipedia)lists 152.
First, the huge part is that 42 looks like an omnibus spending bill more than a public health set of regulations.
Second, smirkeymonkey's version of Title 42's "public health and welfare" can throw anyone about how "public health" relates to
-- Chapter 155: AERONAUTICS AND SPACE ACTIVITIES (sections 17701 to 17829)
-- CHAPTER 159—SPACE EXPLORATION, TECHNOLOGY, AND SCIENCE (sections 18301 to 18445)
-- CHAPTER 160—TREATMENT OF CERTAIN PAYMENTS IN EUGENICS COMPENSATION (section 18501)
Wikipedia gives the most readable map of info in all those "chapters" on spending, because this law definitely needs hyperlinked explanation.
Is the judge arguing the same thing the Dems and Repubs are arguing about? Which could be about spending as much as immigration and public health? It's also possible that other players are arguing about other issues. Seems to me that media can only give the public so much explanation of who and what's really going on around Title 42.
That I'm not a lawyer and likely not expert at researching, which is probably why I'm confused by the hugeness of Title 42 in relation to the ruling.
Just trying to think by writing, is all.
Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.
(July 1, 1944, ch. 373, title III, § 362, 58 Stat. 704.)
https://www.law.cornell.edu/uscode/text/42/265
And what it appears the court is claiming is that the "change" should have gone through a more rigorous Federal Register publication/public commenting process per the Administrative Procedure Act, although this court is being exceedingly picayune about the "public commenting" if all the administration had planned to do was merely update the status of the conditions that triggered use of the regulation to a level that no longer requires its use versus actually throwing the whole regulation out.
This is because this revocation notice WAS published in the Federal Register here - https://www.federalregister.gov/documents/2022/04/06/2022-07306/public-health-determination-and-order-regarding-suspending-the-right-to-introduce-certain-persons
(and this was when all kinds of other "mandates" were going away) where it is basically providing public notice that the extensions to the previous administration's "CDC order" ( "mandate" by the GOP) from May 20, 2020 that declared a "Public health emergency that impacts immigration", were not going to be renewed, and the last extension that was issued would be allowed to expire on May 23, 2022 (which is 2 days from now).
I.e., this judge wants "extra stuff" to justify allowing the expiration (and I know similar has been insisted on before in other things) but from what I understand here, the actual regulation doesn't go away, but the order that invokes it would.
The news reporting about this is so convoluted, purposely obfuscated, and politicized that it is hard to determine what was actually going to be the intent. I.e., it could be that the entire regulation itself was under consideration for revocation, where I can see needing more justification to do that vs just rescinding the "health emergency" order that triggered use of this regulation.
I suppose as a sidenote, the revocation of DACA ( "Deferred Action for Childhood Arrivals" - which was a regulation based on an E.O.) was something that was also argued to need to go through the more drawn-out Federal Register process and it managed to remain in effect and be upheld until a final court case halted it last year (and it was eventually phased out).
the federal regulations that applied to the agencies they worked for, and that gets burned into your psyche, and it doesn't disappear even after one retires. 
Of course all of that is online now... But there's nothing like having a well-worn/beat-up but perfectly-tabbed (so-you-could-go-right-to-the-correct-citation) copy of a CFR. 
I guess it does take a lot of employee orientation to agency regulations, and then frequent referral as they go about their work. I can also understand how the political call for "transparency" isn't realistic. The whole set filled a bookcase and they used to buy a set or two for each branch back in the day (and would get the supplements to account for any changes). Example -
And I found this old Federal Register blog post about how they change the colors - https://www.federalregister.gov/reader-aids/office-of-the-federal-register-blog/2014/09/cfr-color-selection-for-2015
And even then, many of us just photocopied pages from those and made our own "reference copies" to annotate and carry around.
the Legislative Branch (Congress) "passes a law" directing the Executive Branch to do "such and such" and the Executive Branch has it's affected agency publish "Rules" for how it will carry out the law. There is no way an actual "bill" can contain the type of detail needed for an agency to follow to comply with the intent of the law. So rules and regulations are developed to describe how a regulated industry can go about it's business in accordance to the law and what actions might be taken against them if they don't comply, including how that will be enforced.
And EPA has 40CFR -
With respect to E.O.s/E.A.s (including those that reversed ones from the last administration), here is the list -
1st 100 days - https://www.cnn.com/interactive/2021/politics/biden-executive-orders/
Current (46 pages of them) - https://www.whitehouse.gov/briefing-room/presidential-actions/
Thank you! 
We all need to know this and have these links when "deregulation" political arguments erupt.
Undoing what Trump did has been a total hell compared to the usual cleanup.
The regulation was put into effect back in 1944 after the Public Health Service Act of 1944 was signed by FDR.
Over the years, the law and modifications to the provisions/regs were updated to reflect the creation of new health-related entities that were created after 1944 like "CDC" (which didn't exist) and changes to the Department were made (e.g., what is currently "DHHS" - Department of Health and Human Services, used to be called "DHEW" - "Department of Health, Education, and Welfare", etc).
The rest I posted about there - https://www.democraticunderground.com/?com=view_post&forum=1014&pid=2920601
I.e., under 45, CDC "declared a health emergency" and that "triggered" an invocation and use of the regulation.
That "emergency" was extended multiple times through 2020, 2021, and into 2022 when CDC under Biden then "declared the emergency over" by the same procedure done by 45 (published in the Federal Register), which was also a notification that the last "extension" would be allowed to expire (which was due to happen in 2 days).
An earlier court agreed to let it expire but this RW loon court wants "more justification" via a more prolonged "public comment" period for allowing the expiration.
As far as I can tell, the regulation itself is NOT being "revoked" (although I expect many Immigration advocates would like that to happen). What was used to "trigger use of the regulation" is now no longer needed but the "no-mandates-unless-they-want-them" RW activist court wants the "mandate" to remain.
