Title 42 and immigration: VERIFY Fact Sheet

Story update Dec. 27, 2022: The Supreme Court on Dec. 27 ruled enforcement of Title 42 will continue indefinitely.  This story has been updated with the latest development.

Title 42, a public health policy that prevented some people from entering the U.S. at certain border entry points, has been in place since March 2020. 

The enforcement of the Title 42 border policy was set to expire on Dec. 21 until U.S. Supreme Court Chief Justice John Roberts ordered a hold to keep the policy in place.

On Dec. 27, the court ruled the U.S. will keep the Title 42 limits in place indefinitely, or until the judges issue a final ruling that would end the pandemic-era restrictions on asylum seekers. Asylum seekers are people legally seeking protection from violence in their home country. 

But what exactly is Title 42? Recent online searches show many people are wondering what the policy does. VERIFY viewer Jean also texted the team to ask what Title 42 is and how the policy impacts immigration. 

Here’s what we can VERIFY about the policy and what might happen to it in the future. 

THE SOURCES

• U.S. Code: Title 42
• U.S. Code: Title 8
• Centers for Disease Control and Prevention
• American Immigration Council
• Lee Gelernt, an attorney with the American Civil Liberties Union
• Department of Homeland Security
• Texas Attorney General Ken Paxton
• Arizona Attorney General Mark Brnovich

• Supreme Court briefs from 19 states and the Biden Administration

FAST FACTS

• Title 42 is a section under the Public Health Service Act, granting federal health authorities the power to prohibit people from entering the United States who pose a danger associated with disease. 
• Title 42 dates back to 1944, when President Franklin D. Roosevelt signed the Public Health Service Act into law in order to prevent communicable diseases from entering the country during World War II.
• The director of the CDC invoked Title 42 in March 2020, in order to slow the spread of COVID-19. The rules are still being enforced as of December 2022. 
• Title 42 is public health policy and is not immigration policy.

WHAT WE FOUND 

Title 42 became law as part of the 1944 Public Health Service Act

On July 1, 1944, President Franklin D. Roosevelt signed the Public Health Service Act into law. The act revised and expanded public health law and was created in response to World War II, amid concerns about soldiers returning home with diseases like malaria and tuberculosis. 

Title 42 is a section under that law, granting federal health authorities the power to prohibit people from entering the United States who pose a danger associated with disease. 

The CDC invoked Title 42 in 2020 in response to the COVID-19 outbreak

On March 20, 2020, the CDC director under President Donald Trump invoked Title 42 in order to slow the spread of COVID-19, saying the order was “necessary to protect the public health from an increase in the serious danger of the introduction of COVID-19 into the interior of the country.” 

By invoking the statute, border officials were directed to turn away people who were trying to cross Mexican and Canadian borders illegally. It also applied to people seeking asylum at ports of entry at those borders. 

This means if someone not legally eligible to enter the U.S. arrived after the order was issued, they were either returned to their home country or the last country they were in — often Mexico, according to the American Immigration Council.

Title 42 does not apply to:

• U.S. citizens or lawful permanent residents, and their spouses and children
• People from foreign countries who hold valid travel documents and arrived at a point of entry
• People from foreign countries in the visa waiver program who were not otherwise subject to travel restrictions and arrived at a point of entry

Title 42 is not an immigration policy, it’s a public health policy

Title 42 allows border officials to turn away or expel migrants and asylum-seekers on public health grounds, but is not actually part of the U.S. immigration code, also known as Title 8.

Critics of the policy say it unfairly denies people fleeing persecution the right to seek asylum.

Lee Gelernt, an attorney with the American Civil Liberties Union (ACLU), told VERIFY Title 42 was designed to prevent an increased outbreak of diseases like COVID-19 and was not invoked to replace existing immigration laws. The ACLU is fighting to end Title 42 so people who have the right to enter the country legally or seek asylum can do so.

“[Title 42 has]  been in place for three years during COVID. Before then, there were basic immigration laws that were designed to deal with the border, not public health. That’s a different matter – that’s Title 42. If Title 42 goes away those immigration laws that were previously used will come back into play. And those laws allow the government to very quickly expel people who don't have a right to be here. But what they also require is that these people be given an asylum hearing. Right now under Title 42, there's no asylum here,” Gelernt said.

19 states, the Biden administration engaged in legal battle over Title 42

A lower court had previously required the administration to lift the enforcement of Title 42 by Dec. 21. Nineteen states filed an emergency petition appealing the ruling to the Supreme Court asking for Title 42 measures to remain in effect, also known as granting a stay.  

The appeal to the Supreme Court prompted Chief Justice John Roberts to temporarily block the lower court order that would have lifted Title 42.

“Failure to grant a stay here will inflict massive irreparable harm on the States, particularly as the States ‘bear many of the consequences of unlawful immigration,’” the petition said, citing another legal case from Arizona. 

Texas Attorney General Ken Paxton issued a statement saying lifting Title 42 would “only lead to increased chaos on our southern border and [lead to] a massive influx of illegal aliens.” Texas is one of the states on the petition. 

Arizona Attorney General Mark Brnovich said: “Getting rid of Title 42 will recklessly and needlessly endanger more Americans and migrants by exacerbating the catastrophe that is occurring at our southern border.”

In response to the 19 states’ brief, the Biden administration submitted its own petition. 

“The solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification,” the Biden administration wrote in its brief to the Supreme Court.

On Dec. 27, the court ruled Title 42 enforcement would remain until justices issue a formal ruling on the case, which comes after arguments from both sides are heard before the court. The date for the arguments is set during the February Supreme Court session.

Existing immigration laws will kick in if Title 42 is lifted

Title 8 of the U.S. code is the body of laws that addresses nationality and immigration in the U.S. 

During a Dec. 12 briefing, Secretary of Homeland Security (DHS) Alejandro N. Mayorkas provided an update on what would happen once Title 42 is lifted, and how border officials will handle migrants or asylum seekers. 

He said DHS will process individuals without proper travel documents like they did prior to Title 42. For people in the country or attempting to cross the border illegally, DHS would expedite deportation and those people would not be allowed to re-enter the country for five years.

Mayorkas said with or without Title 42, “those unable to establish a legal basis to remain in the United States will be removed.”

The Associated Press contributed to this report.