Texas AG Paxton sues Biden admin on lifting Title 42, warns of ‘devastating flood’ of illegal migration

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Texas Attorney General Ken Paxton is suing the Biden administration over its move to end the Title 42 public health order, arguing the rule is holding back a "devastating flood of illegal immigration." 

The lawsuit, which is the latest legal challenge from Republican states against the administration's move to end Title 42, alleges that the Biden administration failed to follow the Administrative Procedure Act’s notice-and-comment requirements and did not consider the consequences of ending the public health order.

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

"The defendants now seek to eliminate their Title 42 border-control measures, which are the only rules holding back a devastating flood of illegal immigration," the complaint states. "But they failed to follow the Administrative Procedure Act (APA) in attempting this destructive rescission of Title 42."

The Biden administration announced earlier this month it will lift the order in May. Title 42 has been in place since March 2020 due to the COVID-19 pandemic and allows for the rapid expulsion of migrants at the border.

Republicans and Democrats have expressed concerns, which have been acknowledged by the administration, that ending Title 42 will lead to a massive influx of migrants at the border that will outpace the already high numbers. The administration, however, has said it is a public health order, not a border policy, and that the Centers for Disease Control (CDC) can’t use it as for border-related reasons.

Ken Paxton, Texas attorney general, speaks during the Conservative Political Action Conference (CPAC) in Dallas, Texas, July 11, 2021. (Dylan Hollingsworth/Bloomberg via Getty Images)

In an interview with Fox News Digital, Paxton argued the move breached the "arbitrary and capricious" legal test because of the different approaches the Biden administration is taking toward the border given other aspects of its approach to COVID-19.

"We’re … arguing that the change is arbitrary and capricious in light of the fact that everything else they're doing is designed to restrict Americans, whether it’s fighting to keep mask mandates on airplanes or pushing forward on their vaccine mandates," Paxton said. "But, as it relates to the border, they have a completely different view of COVID as it relates to illegal immigrants. They seem not to be concerned at all."

Texas and other border states are already facing massive border numbers, with more than 221,000 migrants encountered in March. That number is expected to rise in April.

"We already have a massive influx of illegals. This was the only thing left keeping it from being even worse," Paxton said. "Anything we can do to slow the border crisis from expanding when the Biden administration clearly wants it to be expanded, we have to do."

It is the latest legal push on immigration and Title 42 by Paxton and other Republican states. Paxton has won a number of legal battles, including a halt to a planned deportation moratorium last year and efforts in the ongoing fight to force the administration to reinstate the Migrant Protection Protocols that will be argued before the Supreme Court next week.

Paxton said the border crisis has led to increasing crime and led to higher costs for Texans for law enforcement, health care and education.

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"We also have a massive increase in drug overdoses, not just in Texas but all over the country," Paxton said. "Cartels are gaining greater power through the Biden administration’s partnership with them, and let’s just admit it, it’s a partnership." 

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Given that successful challenges to Biden's immigration-related policies have also been based on the APA, Republicans are confident of their success in challenging the Title 42 rollback.

The Immigration Reform Law Institute (IRLI), the legal arm of the Federation for American Immigration Reform (FAIR), is representing Texas in the suit as outside counsel and said if the termination of Title 42 stands, "the already gigantic and unmanageable numbers of illegal border crossers will likely double, making the border crisis even more acute." 

"The legal grounds we demonstrate for enjoining this termination are sound, and we hope the court acts swiftly to protect the country from this latest extreme act of a lawless administration," Dale Wilcox, executive director and general counsel of IRLI, said in a statement.

A fourth migrant bus from Texas arrived in Washington, D.C., near the U.S. Capitol April 16, 2022. (Caitlin McFall/Fox News Digital)

The lawsuit is separate from a 21-state complaint filed initially by Arizona, Louisiana and Missouri earlier this month, which called lifting Title 42 a "self-inflicted calamity."

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"I think it's a good idea for different states to file in different places, so we can keep pressure on the Biden administration when they're acting illegally under federal law, when they're basically spitting in the face of the American people as it relates to their role under the U.S. Constitution," Paxton said.