Federal judge expected to rule on Title 42 lawsuit within days as border crisis rolls on

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Court hearing Title 42 case as migrant influx continues

Fox News correspondent Bill Melugin discusses how the courts are set to hear the future of Title 42 and how agents at the border are dealing with smugglers on ‘Special Report.’

A federal judge is expected to determine the fate of the Biden administration’s plan to lift Title 42 within days in response to a lawsuit brought by two dozen Republican states that claims lifting the public health order will lead to a bigger crisis at the southern border.

Judge Robert Summerhays of the Western District of Louisiana heard arguments Friday about the request for a preliminary injunction on the Biden administration’s plan to end Title 42 May 23.

The public health order, enacted in March 2020 due to the COVID-19 pandemic, has been used by both the Trump and Biden administrations to expel a majority of migrants at the southern border.

FEDERAL JUDGE EXTENDS ORDER BLOCKING BIDEN ADMIN FROM ROLLING BACK TITLE 42 AHEAD OF HEARING

A U.S. Border Patrol agent speaks with immigrants before transporting some of them to a processing center in Yuma, Ariz., Dec. 9, 2021. (John Moore/Getty Images)

Republicans and some Democrats have warned that the already massive numbers of migrants being encountered at the border could surge if the order is lifted. It will also lead to significantly more migrants being released into the country, they say. The Department of Homeland Security has acknowledged this possibility, saying it is preparing for up to 18,000 migrants a day once the order drops.

States led by Arizona, Missouri and Louisiana sued, claiming the move by the Centers for Disease Control to lift the order violated the Administrative Procedures Act, which requires a notice-and-comment period and also bars moves deemed "arbitrary and capricious."

The lawsuit claims the administration failed to estimate or account for the costs to the states. They cite "increased health care costs for aliens infected with COVID-19 and the cost of increased illegal immigration caused by the Termination Order and the presence of much greater numbers of paroled aliens with non-meritorious asylum claims who were induced to enter the United States because of the Termination Order."

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"This suit challenges an imminent, man-made, self-inflicted calamity: the abrupt elimination of the only safety valve preventing this administration’s disastrous border policies from devolving into an unmitigated catastrophe," the complaint states.

REPUBLICAN STATES SUE TO STOP BIDEN ADMIN'S LIFTING OF TITLE 42 BORDER POLICY 

The states are seeking a preliminary injunction but have already won smaller victories in a related push for a temporary restraining order to stop the Biden administration from transitioning away from Title 42 expulsions and instead using expedited removal as the May 23 date approaches.

Summerhays granted the temporary restraining order last month and extended it earlier this week. 

Attorneys for the Justice Department argued Friday that the CDC was within its authority to lift an emergency health restriction it felt was no longer warranted at this stage of the pandemic, reiterating that Title 42 is a health policy, not an immigration measure.

"There is no basis to use Title 42 as a safety valve," the DOJ's Jean Lin told Summerhays.

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Activists on both the right and the left believe that Summerhays, a Trump nominee, is likely to rule in favor of the Republicans who sued, meaning Title 42 will remain in place as the busy summer months at the border arrive. 

There were 221,000-plus migrant encounters in March, and that number is expected to have risen in April. Customs and Border Protection (CBP) has not yet released figures for April.

INTERNAL CBP DOC WARNS OF ‘SIGNIFICANT SAFETY IMPLICATIONS’ OF TITLE 42 LIFT, CARTEL HOLD ON CENTRAL AMERICA 

"The Biden administration has little concern for maintaining public safety and even less for following administrative procedures," Arizona Attorney General Mark Brnovich said in a statement after the arguments. "Our coalition of state attorneys general will continue fighting to preserve Title 42 with the hope of maintaining some accountability and sanity at our southern border."

Arizona Attorney General Mark Brnovich (Fox News)

Several immigrant activist groups have asked Summerhays to allow Title 42 to be lifted as planned in California and New Mexico, two states not included in the lawsuit. But the Republican states have sought an injunction that would be applied nationwide due to the national implications of the policy.

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Such a ruling may relieve the Biden administration of a difficult political situation. It is facing pressure from Republicans as well as moderate Democrats, some of whom are in tight re-election races, who have signed onto legislation to delay Title 42 until 60 days after the CDC ends the national emergency.

In the meantime, the Biden administration has been touting its plan to surge resources to the border and move more migrants to expedited removal. So far, it does not appear to have swayed many moderate Democrats on the matter.

The Associated Press contributed to this report.