Three states on Monday sued the Biden administration over its plans to rescind Title 42, a Trump-era order that allows the U.S. to rapidly expel migrants who have crossed the border to seek asylum.
Missouri, Arizona and Louisiana filed the suit after the Biden administration on Friday announced it would lift the order on May 23.
The suit seeks to block the lifting of Title 42 by arguing the Centers for Disease Control and Prevention (CDC), which issued the order, violated the Administrative Procedures Act by failing to allow for a comment period on its revocation.
The CDC, however, didn’t use such notice and comment rulemaking to put the order in place, with the Trump administration instead using a sunset clause requiring the CDC to review the order every 60 days.
The bulk of the suit argues canceling Title 42 would cause a surge of immigration at the border that could overwhelm state and federal resources.
“Defendants’ unlawful termination of the Title 42 policy will induce a significant increase of illegal immigration into the United States, with many migrants asserting non-meritorious asylum claims,” the states write in their suit.
“The Termination Order will create an unprecedented surge at the border that will overwhelm Defendants’ capacity to enforce immigration laws at the border.”
The suit targets nearly every agency involved with either public health or the border, listing some 20 defendants, including agencies like the immigration court system that had little to do with the crafting or enforcement of Title 42.
The Department of Homeland Security (DHS) did not immediately respond to request for comment.
While crafted by the Trump administration just days into the pandemic, Title 42 has been used roughly 1.7 million times by the Biden administration, a figure that includes repeat crossers.
The Biden administration has said it plans to use numerous other avenues to swiftly remove those who cross the border, including another Trump-era policy, known as Remain in Mexico, which the White House has been forced to resume under court order.
“Once the Title 42 Order is no longer in place, DHS will process individuals encountered at the border pursuant to Title 8, which is the standard procedure we use to place individuals in removal proceedings,” Homeland Security Secretary Alejandro Mayorkas said in a statement Friday.
“Nonetheless, we know that smugglers will spread misinformation to take advantage of vulnerable migrants. Let me be clear: those unable to establish a legal basis to remain in the United States will be removed.”