This month a federal judge ruled to vacate Title 42 — the pandemic-era policy that allows border officers to turn away most migrants and asylum seekers on public health grounds. In making the ruling, the judge sided with the ACLU and other immigrant rights groups who argue the protocol was being used as an immigration enforcement tool, rather than a public health safety measure.
It was the latest turn in a lengthy court battle over Title 42 that dates back to the Trump administration. The protocol was originally supposed to be suspended immediately, but when the Biden administration asked for five weeks to prepare for the change at the border, the court agreed. Now, the policy is set to end Dec. 21.
In a motion filed Monday night, 15 GOP-led states, including Arizona, argued ending Title 42 will "directly harm" them.
“Because invalidation of the Title 42 Orders will directly harm the States, they now seek to intervene to offer a defense of the Title 42 policy so that its validity can be resolved on the merits, rather than through strategic surrender,” the filing says.
The states argue the Biden administration violated Administrative Procedures Act requirements by not instating a notice and public comment period before ending Title 42, though the protocol was put in place by the Trump administration without either step.
The states are seeking to intervene in the suit for the chance to argue for an emergency stay to keep Title 42 in place.
Arizona and Texas are the two states bordering Mexico that are part of this legal effort to stop the rollback — along with Alabama, Alaska, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Virginia, West Virginia and Wyoming. Arizona is also part of a separate legal challenge that has kept Title 42 in place since May.
