UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

THE STATE OF ARIZONA, By and through

its Attorney General, MARK BRNOVICH;

THE STATE OF LOUISIANA,

By and through its Attorney General, JEFF
LANDRY;

THE STATE OF MISSOURI,

By and through its Attorney General, ERIC S.
SCHMITT;

PLAINTIFFS,

v. CIVIL ACTION NO. _______________

CENTERS FOR DISEASE CONTROL &

PREVENTION;

ROCHELLE WALENSKY , in her official

capacity as Director of the Centers for
Disease Control & Prevention;

U.S. DEPARTMENT OF HEALTH & HU-

MAN SERVICES;

XAVIER BECERRA , in his official capacity as

Secretary of Health and Human Services;

the UNITED STATES DEPARTMENT OF

HOMELAND SECURITY;

ALEJANDRO MAYORKAS in his official ca-

pacity as Secretary of Homeland Security;

U.S CUSTOMS AND BORDER PROTEC-

TION;

CHRISTOPHER MAGNUS in his official ca-

pacity Commissioner of U.S. Customs and Bor-
der Protection;

1
U.S. IMMIGRATION AND CUSTOMS EN-
FORCEMENT;

TAE JOHNSON in his official capacity as Sen-

ior Official Performing the Duties of Director of
U.S. Immigration and Customs Enforcement;

U.S. CITIZENSHIP AND IMMIGRATION

SERVICES;

UR M. JADDOU in her official capacity as Di-

rector of U.S. Citizenship and Immigration Ser-
vices;

U.S. BORDER PATROL;

RAUL ORTIZ in his official capacity as Chief of

the U.S. Border Patrol;

The UNITED STATES DEPARTMENT OF

JUSTICE;

MERRICK GARLAND in his official capacity

as Attorney General of the United States of
America;

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW;

DAVID NEAL in his official capacity as Direc-

tor of the Executive Office for Immigration Re-
view;

JOSEPH R. BIDEN, J R., in his official

capacity as President of the United
States; and

the UNITED STATES OF AMERICA;

DEFENDANTS.

COMPLAINT

The States of Arizona, Louisiana, and Missouri bring this civil action against the above-listed

Defendants for declaratory and injunctive relief and allege as follows:

2
 INTRODUCTION
1. This suit challenges an imminent, man-made, self-inflicted calamity: the abrupt elim-

ination of the only safety valve preventing this Administration’s disastrous border policies from de-

volving into an unmitigated chaos and catastrophe. Specifically, this action challenges the Biden

Administration’s revocation of Title 42 border control measures, which will, absent judicial relief,

become effective May 23, 2022.

2. This is not merely the opinion of the Plaintiff States, but also that of some of the

Administration’s ardent supporters. For example, one Democratic Senator observed: “This is the

wrong decision…. [I]t’s clear that this administration’s lack of a plan to deal with this crisis will fur-

ther strain our border communities.”

3. Similarly, another Democratic Senator explained that the “decision to announce an

end to Title 42 despite not yet having a comprehensive plan ready shows a lack of understanding

about the crisis at our border.”

4. Eight days prior, these two Democratic Senators wrote a letter to President Biden

telling him: “To date, we have not yet seen evidence that DHS has developed and implemented a

sufficient plan to maintain a humane and orderly process in the event of an end to Title 42.”

5. A third Democratic Senator, Joe Manchin, described the Title 42 revocation as an

outright “frightening decision.”1 He further explained that “[w]e are nowhere near prepared to deal with that

influx. Until we have comprehensive, bipartisan immigration reform that commits to securing our

borders and providing a pathway to citizenship for qualified immigrants, Title 42 must stay in place.”2

In addition, “Title 42 has been an essential tool in combatting the spread of COVID-19 and control-

1
Joe Manchin, Title 42 Must Stay In Place Until We Have Major Immigration Reforms (April 1, 2022)
https://bit.ly/37azEI0 (emphasis added).
2
Id. (emphasis added).

3
ling the influx of migrants at our southern border,” said Senator Manchin.3 “We are already facing

an unprecedented increase in migrants this year, and that will only get worse if the Administration

ends the Title 42 policy.”4

6. And a fourth Democratic Senator, Maggie Hassan, similarly declared that: “Ending

Title 42 prematurely will likely lead to a migrant surge that the administration does not appear to be

ready for.”5

7. And these are just the opinions of Senators of President Biden’s own party—hardly

disinterested, neutral observers. To be fair, these views appear to be widely shared—though in

more-circumspect/less-candid statements—by many members of the Biden Administration itself,

even at the highest levels. For example, the White House’s own Communications Director, Kate

Bedingfield, outright admitted that the Administration “ha[s] every expectation that when the CDC

ultimately decides it’s appropriate to lift Title 42, there will be an influx of people to the border.”6

8. Senator Bill Cassidy of Louisiana similarly criticized the Biden Administration’s

plans, stating “Removing Title 42 is a mistake that will encourage another wave of illegal migration

and drug trafficking to overwhelm the Southern border. There is no justification for this.” See Press

Release, Cassidy Reacts to Rescinding Trump-Era Policy to Stop Mass Migration,

www.cassidy.senate.gov.

9. The National Border Patrol Council President, Brandon Judd, similarly declared:

“We know this is going to cause chaos of epic proportions.”7 He also noted the obvious incongruity of

3
Id.
4
Id.
5
https://twitter.com/SenatorHassan/status/1509936999267983364
6
Catherine E. Shoichet, We're expecting a big increase in migrants at the US-Mexico border. But this time is
different, CNN, (April 1, 2022) (emphasis added), https://cnn.it/3LrtLoC.
7
Adam Shaw, Border Patrol agents bracing for new migrant wave if Title 42 lifts: 'We are expecting to get
wrecked, Fox News, (Mar, 31, 2022), https://fxn.ws/3uKEx2B

4
Administration policy: “We can’t even fly on airplanes without masks, but we’re going to end Title

42 which is going to cause the single largest [in]flux of illegal immigration in our history?”8 “It’s im-

possible for me to overstate how demoralized the average agent is,” Judd said. “They’re asking

themselves, ‘Why am I putting on this uniform?’ every day. This administration is responsible for the

single largest crisis on the border and they’re about to make it worse.”9

10. Similarly, DHS put out an official “fact sheet” in anticipation of the Title 42 revoca-

tion declaring that “There is broad agreement that our immigration system is fundamentally broken.”10

But the Administration’s “answer” to that problem is to break it further.

11. Other DHS officials, shielded by anonymity, have been even more candid, explaining

that “ending Title 42 would lead to what one DHS agent described as a ‘surge on top of a surge.’”11

12. One anonymous agent succinctly explained the sentiment at the Border Patrol: “We

are expecting to get wrecked.”12

13. The Center for Disease Control’s (“CDC’s”) April 1, 2022 order revoking its prior

Title 42 policy is also plainly at war with other policies of the Biden Administration. The Title 42

Termination is expressly premised on the “rapid[] decrease” of COVID-19 cases following the re-

cent wave of the Omicron variant of the virus. Ex. A at 12. But the Administration has not seen fit

elsewhere to act upon these improvements by, for example, lifting the mask mandate on airline trav-

8
Id.
9
Callie Patteson and MaryAnn Martinez, Immigration authority Title 42 to be terminated on May 23, CDC
says, NY Post (Apr. 1, 2022), https://nypost.com/2022/04/01/title-42-to-be-terminated-on-may-
23-cdc-says/.
10
DHS, Fact Sheet: DHS Preparations for a Potential Increase in Migration (Mar. 30, 2022),
https://bit.ly/3j3LEgR.
11
Adam Shaw and Peter Hasson, Border Patrol agents bracing for new migrant wave if Title 42 lifts: “We are
expecting to get wrecked”, Fox News (Mar. 31, 2022), https://fxn.ws/3IZjApt.
12
Id.

5
el,13 or loosening or repealing its vaccination mandates,14 or ending its relentless campaign to dis-

charge members of our military who have applied for religious exemptions for vaccination require-

ments—which have been almost uniformly denied.15 The Title 42 Revocation thus stands as a radical

outlier—seemingly the only COVID-19-based restriction the Administration sees fit to end.

14. But the CDC’s Termination Order is not merely unfathomably bad public policy. It

is also profoundly illegal. That is principally so for two reasons: (1) Defendants unlawfully flouted

the notice-and-comment requirements for rulemaking under the Administrative Procedure Act

(“APA”) and (2) Defendants’ Termination Order is arbitrary and capricious, thus violating the APA,

because it has numerous omissions that each independently render it illegal.

15. First, the notice-and-comment violation: Defendants do not deny that the Termina-

tion Order would ordinarily be subject to the requirement of providing notice of a proposed rule,

taking comment upon it, and responding to those comments. They seek to excuse their flouting of

that requirement for two reasons: they invoke the “good cause” and “foreign affairs” exceptions of

5 U.S.C. §553(a)(1) and (b)(3)(B). But neither applies.

13
Jonathan Franklin, U.S. airline CEOs call on President Biden to end the federal mask mandate on planes,
NPR (Mar. 24, 2022), https://www.npr.org/2022/03/24/1088669929/airlines-federal-travel-mask-
mandate (noting request from airline CEOs to the Biden Administration that the air travel mask
mandate be lifted, and noting that “the White House has not yet commented on the group's re-
quest).
14
E.g., Georgia v. Biden, --- F.Supp.3d ----, 2021 WL 5779939 (S.D. Ga. Dec. 7, 2021) (granting na-
tionwide preliminary injunction of federal contractor vaccine mandate); Georgia v. Biden, 21-cv-00163,
ECF No. 96 (S.D. Ga. Dec 9, 2021) (federal government’s notice of appeal of nationwide injunction
of federal contractor vaccine mandate); Feds for Med. Freedom v. Biden, --- F.Supp.3d ----, 2022 WL
188329, at *8 (S.D. Tex. Jan. 21, 2022) (granting nationwide preliminary injunction of federal em-
ployee vaccine mandate); Feds for Med. Freedom v. Biden, 21-cv-00356, ECF No. 37 (S.D. Tex. Jan. 21,
2022) (federal government’s notice of appeal of nationwide injunction of federal employee vaccine
mandate).
15
E.g., U.S. Navy SEALs 1-26 v. Biden, --- F.Supp.3d ----, 2022 WL 34443, at *1, *13, and *14 (N.D.
Tex. Jan. 3, 2022) (“[t]he Navy has not granted a religious exemption to any vaccine in recent
memory”; noting punitive measures taken against Navy SEALS who refused to take vaccine, includ-
ing threat of discharge from military; and enjoining military vaccine mandate); U.S. Navy SEALs 1-
26 v. Biden, 21-cv-01236, ECF No. 82 (N.D. Tex. Jan. 21, 2022) (federal government’s notice of ap-
peal). .

6
 16. As to the good cause exception, CDC argues that “it would be impracticable and

contrary to the public interest” to take public comments on the Title 42 Revocation, and that DHS

“need[s] time to implement an orderly and safe termination of the order.” Order at 29. These skele-

tal assertions fail to satisfy the good cause exception for four reasons.

17. First, CDC had ample time to take public comment on revoking Title 42 and lacks any

pressing need or minimally persuasive excuse for failing to do so. President Biden issued an execu-

tive order on February 2, 2021, directing CDC and DHS to consider rescinding Title 42. Defendants

thus had one day short of fourteen months to take public comment on potentially rescinding Title 42.

They simply refused to do so. That willful failure to take public comments in that time is not “good

cause” under the APA.

18. Second, Defendants ignore that while the initial promulgation of Title 42 invoked the

good cause exception—because its issuance was during the rapidly unfolding beginning of the

Covid-19 pandemic—the same is not true here. This Order arises two full years into the pandemic,

where it is waning in some areas while a new variant threatens others. The exigency of the initial or-

der simply does not exist here. There is no “pandemic exception” to notice-and-comment require-

ments, particularly two years into that pandemic.

19. Third, the CDC ignores that it did take public comment on the initial Title 42 Order

under the Trump Administration, from March 24 to April 24, 2022, and then issued a final rule less

than five months after the comment period closed. 85 Fed. Reg. 56424, 56488 (Sept. 11, 2020).

There is no reason that the CDC could not have taken the same approach again here—and the CDC

certainly does not supply any. The CDC is thus simply wrong in contending that the “extraordinary

nature” of Title 42 orders necessarily eliminates the APA’s requirement for taking public comment,

as itsown actions demonstrate.

20. Fourth, the CDC’s rationale is self-refuting: if Defendants “need time” to implement

7
the Title 42 revocation, which the Order effectively concedes will be extraordinarily challenging, that

is a reason to take comments so the agency can have the benefit of public input and can use the

needed time to obtain it. Moreover, the disaster that the Administration correctly predicts could

easily be less calamitous if they take suggestions from the public and states and incorporate those

suggestions. But the CDC’s arrogant assertion that there is no value to be had from public commenting

does not constitute “good cause.”

21. As to the foreign affairs exception, the CDC offers only a single unspecific sentence

contending that “this Order concerns ongoing discussions with Canada, Mexico, and other countries

regarding immigration and how best to control COVID-19 transmission over shared borders.” Or-

der at 29. That is patently insufficient.

22. The “foreign affairs exception applies in the immigration context only when ordinary

application of the public rulemaking provisions [i.e., taking public comment] will provoke definitely unde-

sirable international consequences.” East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 775–76 (9th Cir.

2018) (cleaned up) (emphasis added). But the CDC does not identify any potential “undesirable in-

ternational consequences,” let alone establish with certainty that such consequences will occur. In-

stead, the CDC’s order merely alludes to the fact that the Administration is engaged in unspecified

talks with Canada and Mexico about Covid-19. That is woefully insufficient. The Administration

cannot evade notice-and-comment requirements by the expedient of simply talking with its neigh-

boring countries about the same subject in lieu of seeking comment from its own citizens. But that

is all Defendants offer here.

23. For these reasons, neither the good cause nor foreign affairs exceptions apply here.

The CDC’s refusal to take public comment thus violates the APA and alone requires invalidation of

the Termination Order.

24. That conclusion is perhaps unsurprising. The Biden Administration’s violation of no-

8
tice-and-comment requirements in the immigration context is by now notorious with federal courts.

See, e.g., Arizona v. Biden, __ F. Supp. 3d ___, 2022 WL 839672, at *36 (S.D. Ohio Mar. 22, 2022)

(holding that Plaintiffs states had established “strong likelihood the States prevail on their notice-

and-comment claim” against DHS Permanent Guidance severely restricting immigration enforce-

ment); Texas v. United States, __ F. Supp. 3d ___, 2021 WL 3683913, at *51-58 (S.D. Tex. Aug. 19,

2021) (holding that DHS’s issuance of Interim Guidance, which similarly and severely reduced re-

movals of aliens with criminal convictions, violated notice-and-comment requirements); Texas v

United States, 524 F. Supp. 3d 598, 656-62 (S.D. Tex. 2021) (holding same for 100-day moratorium

on immigration removals). Indeed, at oral argument Justice Kagan recently observed another poten-

tial violation by DHS, explaining that “[t]he real issue to me is [DHS’s] evasion of notice-and-

comment.”16

25. The Termination Order also violates the APA as arbitrary and capricious decision-

making. “[A]gency action is lawful only if it rests on a consideration of the relevant factors” and

considers all “important aspects of the problem.” Michigan v. EPA, 576 U.S. 743, 750-52 (2015) (re-

quiring “reasoned decisionmaking”). This means agencies must “examine all relevant factors and

record evidence.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017).

26. The CDC’s Order is arbitrary and capricious most obviously because it expressly re-

fuses to analyze the impacts it will have upon the States. That is, after all, an “important aspect of

the problem.” Michigan, 576 U.S. at 752. Indeed, the Supreme Court has repeatedly recognized “the

importance of immigration policy to the States,” particularly as the States “bear[] many of the con-

sequences of unlawful immigration. Arizona v. United States, 567 U.S. 387, 397 (2012)

27. The CDC does not even attempt to deny that its Title 42 Termination Order will

16
Transcript at 47-48, Arizona v. San Francisco, No. 20-1775 (Feb. 23, 2022) available at
https://bit.ly/3itwfq7

9
impose enormous costs upon the States. Nor did it make any attempt to analyze those substantial

harms—even though it was legally required to do so under the APA. See, e.g., Arizona v. Biden, 2022

WL 839672, at *30 (holding that DHS violated APA by providing “no explanation of how its poli-

cy—that relaxes mandatory detention standards set by Congress—might increase state criminal jus-

tice expenses”); Texas v. United States, 2021 WL 3683913, at *49 (explicitly rejecting “the Govern-

ment’s argument that it need not consider the States’ costs and expenses stemming from the new

[immigration] guidelines” under the APA). Defendants thus violated the APA by failing to consider

the impacts of their Order on the States, which is manifestly an “important aspect of the problem.”

Michigan, 576 U.S. at 752.

28. Rather than attempting to analyze the costs that its Order will impose on the States

whatsoever, CDC denies that it has any obligation to consider those harms at all. Instead, it reasons

that “no state or local government could be said to have legitimately relied on the CDC [Title 42]

Orders … because those orders are, by their very nature, short-term orders, authorized only when

specified statutory criteria are met, and subject to change at any time in response to an evolving pub-

lic health crisis.” Order at 23.

29. The CDC’s argument fails for two reasons. First, regardless of the purported illegiti-

macy of the State’s reliance on the CDC’s Title 42 Orders, the CDC still had an obligation to con-

sider the harms to the States since that is an “important aspect of the problem.” Michigan, 576 U.S. at

752. The CDC has no license to inflict wanton harms on the States without at least first considering

what the magnitude of those harms might be and whether they could be mitigated if the agency con-

sidered alternatives with those harms in mind. See, e.g., id. at 759 (explain that agencies “must con-

sider cost … before deciding whether regulation is appropriate and necessary”). Here the CDC

failed to do so—and indeed expressly refused to consider those harms. Defendants’ APA violation is

thus explicit and admitted.

10
 30. Second, even if the CDC were correct that the “short-term” nature of the Title 42 Or-

ders—which have been in place for two entire years and counting—meant that the States could rely

on the Orders being in place permanently, the States still could reasonably rely on the CDC not to re-

voke the Orders abruptly at a truly terrible time to do so. The Order’s timing will greatly exacerbate

an already extant meltdown of operational control at the southern border—which even the Admin-

istration and its supporters fully expect. Supra ¶¶2-7, 10. Simply put, the States could reasonably rely

on the CDC not suddenly revoking its Title 42 Orders now, thereby stacking crisis upon crisis—or

in the words of DHS officer, inflicting a “surge on top of a surge.”

31. A second principal deficiency of the Termination Order is that it fails to analyze

meaningfully the entirely predictable—and actually predicted—surge of illegal migration that it will

cause. Indeed, the Administration has internally predicted that the Termination Order could triple

the daily number of illegal aliens attempting to cross the border. See infra ¶¶ 90. But the Termination

Order never meaningfully analyzes these impacts or considers ways in which they might be mitigat-

ed.

32. These are only the most flagrant of the defects of the Order. It is also arbitrary and

capricious because it, for example, (1) failed to consider alternative effective dates, (2) failed to con-

sider DHS’s inability to cope with the resulting surge and failure to plan adequately for it, (3) failed

to consider the impacts of the fact that there are huge numbers of aliens waiting at the southern bor-

der to cross the moment that Title 42 is rescinded, and (4) failed to consider the cumulative effects

of the rescission of the Title 42 rescission with the Administration’s attempted termination of the

Migrant Protection Protocol, see Texas v. Biden, 20 F.4th 928, 990 (5th Cir. 2021) cert. granted, 142 S.

Ct. 1098 (2022), whose impacts will snowball upon each other.

33. For all of these reasons, the CDC’s Title 42 Termination Order violates the APA

many times over. This Court should accordingly “hold unlawful and set aside” that Order. 5 U.S.C.

11
§ 706(2).

PARTIES
34. Plaintiff State of Arizona is a sovereign state of the United States of America. Arizo-

na sues to vindicate its sovereign, quasi-sovereign, and proprietary interests. Arizona brings this suit

through its Attorney General, Mark Brnovich. He is the chief legal officer of the State of Arizona

and has the authority to represent the State in federal court. His offices are located at 2005 North

Central Avenue, Phoenix, Arizona 85004.

35. Plaintiff State of Louisiana is a sovereign State of the United States of America. Lou-

isiana sues to vindicate its sovereign, quasi-sovereign, and proprietary interests. Louisiana brings this

suit through its Attorney General, Jeff Landry. He is authorized by Louisiana law to sue on the

State’s behalf. His offices are located at 1885 North Third Street, Baton Rouge, Louisiana 70802.

36. Plaintiff State of Missouri is a sovereign State of the United States of America. Mis-

souri sues to vindicate its sovereign, quasi-sovereign, and proprietary interests. Missouri brings this

suit through its Attorney General, Eric S. Schmitt. He is authorized by Missouri law to sue on the

State’s behalf. His address is P.O. Box 899, Jefferson City, Missouri 65102

37. Defendants are officials of the United States government and United States govern-

mental agencies responsible for promulgating or implementing the Rule.

38. Defendant Centers for Disease Control and Prevention is constituent agency of the

U.S. Department of Health and Human Services (“HHS”). It conducts specified functions under the

Public Health Service Act, including exercising authority delegated by HHS.

39. Defendant Rochelle Walensky is the Director of the CDC. She is sued in her official

capacity.

40. Defendant U.S. Department of Health and Human Services is an executive depart-

ment of the United States Government.

12
 41. Defendant Xavier Becerra is the Secretary of HHS. He is sued in his official capacity.

42. Defendant United States Department of Homeland Security (“DHS”) is an executive

department of the United States Government.

43. Defendant Alejandro Mayorkas is the Secretary of Homeland Security and therefore

the “head” of DHS with “direction, authority, and control over it.” 6 U.S.C. § 112(a)(2). Defendant

Mayorkas is sued in his official capacity.

44. Defendant U.S. Customs and Border Protection (“USBP”) is an agency within DHS

that is headquartered in Washington, D.C.

45. Defendant Christopher Magnus serves as Commissioner of USBP. Defendant Mag-

nus is sued in his official capacity.

46. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is an agency within

DHS that is headquartered in Washington, D.C.

47. Defendant Tae Johnson serves as Acting Director of ICE. Defendant Johnson is

sued in his official capacity.

48. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is an agency within

DHS that is headquartered in Camp Springs, Maryland.

49. Defendant Ur Jaddou serves as the Director for USCIS. Defendant Jaddou is sued in

her official capacity.

50. Defendant U.S. Border Patrol is an agency within DHS that is headquartered in

Washington, D.C.

51. Raul Ortiz serves as the Chief of the U.S. Border Patrol.

52. Defendant Department of Justice (“DOJ”) is an executive department of the United

States Government.

13
 53. Defendant Merrick Garland is the Attorney General of the United States of America.

He is sued in his official capacity.

54. Defendant Executive Office for Immigration Review (“EOIR”) is an agency within

DOJ that is headquartered in Bailey's Crossroads, Virginia.

55. Defendant David Neal is Director of EOIR. He is sued in his official capacity.

56. Defendant Joseph R. Biden, Jr., is the President of the United States. He is sued in

his official capacity.

57. Defendant the United States of America is sued under 5 U.S.C. §§ 702–703 and 28

U.S.C. § 1346 and includes the departments and agencies thereof.

JURISDICTION AND VENUE

58. This Court has subject-matter jurisdiction over this case because it arises under the

Constitution and laws of the United States. See 28 U.S.C. §§1331, 1346, 1361; 5 U.S.C. §§701-06.

59. An actual controversy exists between the parties within the meaning of 28 U.S.C.

§§2201(a), and this Court may grant declaratory relief, injunctive relief, and other relief under 28

U.S.C. §§2201-02, 5 U.S.C. §§705-06, 28 U.S.C. § 1361, and its inherent equitable powers.

60. Venue is proper in this Court under 28 U.S.C. §1391(e)(1) because (1) Defendants

are United States agencies or officers sued in their official capacities, (2) the State of Louisiana is a

resident of this judicial district, (3) no real property is involved, and (4) a substantial part of the

events or omissions giving rise to the Complaint occur within this judicial district. See Atlanta & F.R.

Co. v. W. Ry. Co. of Ala., 50 F. 790, 791 (5th Cir. 1982); Ass’n of Cmty. Cancer Centers v. Azar, 509 F.

Supp. 3d 482 (D. Md. 2020).

FACTUAL AND LEGAL BACKGROUND

The INA’s Requirements

14
 61. The Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, and the Immi-

gration and Nationality Act, 8 U.S.C. § 1101 et seq., charge DHS with enforcing the United States’

immigration laws. Under the immigration laws, “several classes of aliens are ‘inadmissible’ and there-

fore ‘removable.’” Dept. of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959, 1964 (2020), citing 8 U.S.C.

§§ 1182, 1229a(e)(2)(A). Among these classes are aliens who lack a valid entry document when they

apply for admission. 8 U.S.C. § 1182(a)(7)(A)(i)(l). This includes aliens who arrive in the United

States and aliens who are present in the United States without having been lawfully admitted, who

are deemed to have applied for admission. 8 U.S.C. § 1225(a)(1).

62. An inadmissible alien may be removed; the usual process involves an evidentiary

hearing before an immigration judge at which the alien may present evidence and argue against re-

moval. Thuraissigiam, 140 S.Ct. at 1964. However, this process is slow, and while “removal is being

litigated, the alien will either be detained, at considerable expense, or allowed to reside in this coun-

try, with the attendant risk that he or she may not later be found.” Id.

63. To address these problems, Congress created more expedited procedures that apply

to aliens who are “present in the United States who [have] not been admitted” and to aliens “who

arrive[] in the United States (whether or not at a designated port of arrival ...)[.]” 8 U.S.C. §

1225(a)(1).

64. These aliens are subject to expedited removal if they (1) are inadmissible because

they lack a valid entry document; (2) have not “been physically present in the United States continu-

ously for the 2-year period immediately prior to the date of the determination of inadmissibility”;

and (3) are among those whom the Secretary of Homeland Security has designated for expedited

removal. Id. § 1225(b)(1)(A). Once an immigration officer determines that such an alien is inadmissi-

ble, the alien must be ordered “removed from the United States without further hearing or review.”

Id. § 1225(b)(1)(A)(i).

15
 65. Whether subject to the standard removal process or the expedited process, aliens

who intend to claim asylum or who claim a credible fear of persecution are not deportable while that

claim is being investigated. See 8 U.S.C. §§ 1158, 1225(b)(1). But those aliens must be detained until

their entitlement to asylum is determined. Id. § 1225(b)(2).

66. It has been generally accepted that DHS has the discretion as to whether to place al-

iens, other than unaccompanied children, into the standard removal process or into expedited re-

moval. See, e.g., Matter of M-S-, 27 I&N Dec. 509, 510 (A.G. 2019); Matter of E-R-M- & L-R-M-, 25

I&N Dec. 520, 524 (BIA 2011); 8 U.S.C. § 1232(a)(5)(D) (exception). Whichever path DHS chooses,

aliens placed in removal proceedings must be detained until DHS has finished considering the asy-

lum application or the removal proceedings. See Jennings v. Rodriguez, 138 S. Ct. 830, 844–45 (2018),

(citing 8 U.S.C. § 1225(b)(1), (2)). DHS may “for urgent humanitarian reasons or significant public

benefit” temporarily parole these aliens, but it may do so “only on a case-by-case basis.” 8 U.S.C.

§ 1182(d)(5)(A).

67. Another class of inadmissible aliens is those who have a “communicable disease of

public health significance[.]” 8 U.S.C. § 1182(a)(1)(A)(i). The INA defines a “communicable disease

of public health significance” by referring to “regulations prescribed by the Secretary of Health and

Human Services.” Id.

68. There are two circumstances under which aliens must be detained to determine

whether they are inadmissible for public-health reasons. First, they must be detained if DHS has rea-

son to believe they are “afflicted with” such a disease. 8 U.S.C. § 1222(a). Second, they must be de-

tained if DHS “has received information showing that any aliens are coming from a country or have

embarked at a place” where such a disease is “prevalent or epidemic[.]” This detention must enable

“immigration officers and medical officers” to conduct “observation and an examination sufficient

to determine whether” the aliens are inadmissible. Id.

16
Covid-19 And The Requirements of the PHSA

69. In the words of the CDC itself, Covid-19 “is a quarantinable communicable disease

caused by the SARS-CoV-2 virus.” Order Suspending the Right to Introduce Certain Persons, 86

Fed. Reg. 42,828, 42,830 (Aug. 5, 2021). Since it emerged in late 2019, “SARS–CoV–2, the virus that

causes COVID–19, has spread throughout the world, resulting in a pandemic.” Id.

70. Since COVID-19 was first declared a public-health emergency in January 2020, “the

U.S. government and CDC have implemented a number of COVID–19 mitigation and response

measures.

71. The first Title 42 Order was issued on March 24 as an interim final rule. 85 Fed. Reg.

16,559 (Mar. 24, 2020). At the same time, the CDC expressly invited “comment on all aspects of this

interim final rule, including its likely costs and benefits and the impacts that it is likely to have on the

public health, as compared to the current requirements under 42 CFR part 71.” Id. at 16,559.

72. After receiving 218 comments during the 30-day comment window that closed April

24, 2020, the CDC published a final rule September 11, 2020; that rule “establishe[d] final regula-

tions under which the Director [of the CDC] may suspend the right to introduce and prohibit, in

whole or in part, the introduction of persons into the United States for such period of time as the

Director may deem necessary to avert the serious danger of the introduction of a quarantinable

communicable disease into the United States.” 85 Fed. Reg. 56,424, 56,424, 56, 448 (Sep. 11, 2020)

(codified at 42 C.F.R. § 71.40). This Final Rule, issued under the authority granted by the PHSA, 42

U.S.C. § 265, became effective October 13, 2020. On October 13, 2020, the day the Final Order be-

came effective, the CDC issued its Order Suspending the Right to Introduce Certain Persons From

Countries Where a Quarantinable Communicable Disease Exists. 85 Fed. Reg. 65,806–12 (Oct. 13,

2020). Collectively, the Final Rule and this October Order work together in a process generally

known as “Title 42” or “Title 42 Order(s).”

17
 73. Though issued under the Final Rule, the October Order was the latest in a series of

orders issued under the original March 24, 2020 interim final rule. As had the earlier orders, the Oc-

tober Order suspended introducing covered aliens into the United States, a suspension lasting until

CDC determined that “the danger of further introduction of COVID-19 into the United States has

ceased to be a serious danger to the public health[.]” 85 Fed. Reg. at 65,810. The suspension was

based on findings that:

• COVID-19 is a communicable disease that poses a danger to the public health;

• COVID-19 is present in numerous foreign countries, including Canada and Mexico;

• Because COVID-19 is so globally widespread, there is a serious danger that it will be car-

ried into the land points of entry and Border Patrol stations at or near the United States’

borders with Canada and Mexico, and from there into the interior of the country;

• If their entry were not suspended, covered aliens would be go through immigration pro-

cessing at the land points of entry and Border Patrol stations that would require many of

them (typically aliens who lack valid travel documents and are therefore inadmissible) to be

held in the congregate areas of the facilities, in close proximity to one another, for hours or

days;

• Holding them in such settings would increase the already serious danger to the public

health of the United States; and

• This increased danger rose to the level that it required a temporary suspension of the in-

troduction of covered aliens into the United States.

Id.

74. Customs and Coast Guard officers have the duty to “aid in the enforcement of quar-

antine rules and regulations,” PHSA, 42 U.S.C. § 268, and the Order noted that the CDC had re-

quested “that DHS aid in the enforcement [of] this Order because CDC does not have the capabil-

18
ity, resources, or personnel needed to do so.” Id. at 65,812. The CDC needed this assistance because

of its own public health tools not being “viable mechanisms given CDC resource and personnel

constraints, the large numbers of covered aliens involved, and the likelihood that covered aliens do

not have homes in the United States.” Id.

75. The October Order applied to all covered aliens, defined as aliens “seeking to enter

the United States … who lack proper travel documents,” “whose entry is otherwise contrary to law,”

or “who are apprehended at or near the border seeking to unlawfully enter the United States.” Id. at

65,807.

76. The October Order noted that expulsions under CDC’s prior orders had “reduced

the risk of COVID-19 transmission in [points of entry] and Border Patrol Stations, and thereby re-

duced risks to DHS personnel and the U.S. health care system.” Id. It further noted that “[t]he pub-

lic health risks to the DHS workforce—and the erosion of DHS operational capacity—would have

been greater” without the initial suspension order. Further, the suspension orders “significantly re-

duced the population of covered aliens in congregate settings in [points of entry] and Border Patrol

stations, thereby reducing the risk of COVID-19 transmission for DHS personnel and others within

these facilities.” Id.

77. DHS began using its Title 42 authority to expel aliens in March 2020, and the popu-

lation of aliens processed under Title 8 (the ordinarily applicable immigration rules) plummeted. Out

of more than 253,000 total southwest border encounters under Title 8 in Fiscal Year 2020, fewer

than 25,000 occurred in the last six months of the year.17 During that same six-month period, nearly

200,000 aliens were rapidly expelled under Title 42.

17
The CBP statistics cited in this Complaint are available at Sw. Border Land Encounters, U.S. CUS-
TOMS AND BORDER PROT., https://www.cbp.gov/newsroom/stats/southwest-land-border-
encounters (last visited Aug. 23, 2021).

19
 78. On July 19, 2021, the CDC issued a new order excepting unaccompanied children

from the October Order. Public Health Determination Regarding an Exception for Unaccompanied

Noncitizen Children, 86 Fed. Reg. 38,717 (July 22, 2021) (signed July 19, 2021)

79. On August 3, 2021, Defendants issued an order superseding the October Order and

incorporating by reference the July Order excepting unaccompanied children. Public Health Reas-

sessment and Order Suspending the Right to Introduce Certain Persons, 86 Fed. Reg. 48,828 (Aug.

5, 2021) (“August Order”).

80. The August Order summarized the current state of emergency and nature of the

pandemic:

 “Congregate settings, particularly detention facilities with limited ability to provide

adequate physical distancing and cohorting, have a heightened risk of COVID-19

outbreaks.” Id. at 42,833. CBP facilities themselves have “[s]pace constraints [that]

preclude implementation of cohorting and consequence management such as quar-

antine and isolation.” Id. at 42,837.

 “Countries of origin for the majority of incoming covered [aliens] have markedly

lower vaccination rates.” Of the top five originating countries, El Salvador, at 22%,

had the highest rate of vaccinated persons; Guatemala and Honduras, the two low-

est, had 1.6% and 1.8%, respectively. Id. at 42,834 & n.57.

81. The August Order concedes that “the flow of migration directly impacts not only

border communities and regions, but also destination communities and healthcare resources of

both.” 86 Fed. Reg. at 42,835. It came only days after the Defendants released more than 1,500

COVID-positive unauthorized immigrants into the city of McAllen, Texas.18

18
Adam Shaw & Bill Melugin, “Texas border city says more than 7,000 COVID-positive migrants
released since February, 1,500 in last week,” FOX NEWS (Aug. 4, 2021),

20
 82. On March 11, 2022, CDC Director Walensky issued a new order (the “March Or-

der”) superseding the August Order. 87 Fed. Reg. 15243. The March Order apparently was issued in

response to litigation in Texas19 challenging Defendants’ practice of not applying Title 42 to unac-

companied alien children (“UAC”). The March Order found that suspending entry of UACs was

“not necessary to protect U.S. citizens,” and that the August Order’s provisions were terminated as

to UACs, but not as to “individuals in family units (FMU) or single adults (SA).” 87 Fed. Reg.

15243, 15245.

Termination of the August and March Orders

83. On April 1, 2022, CDC Director Walensky issued an order terminating the Title 42

policy (the “Termination Order”) effective May 23, 2022. Exhibit A, Public Health Determination

And Order Regarding The Right To Introduce Certain Persons From Countries Where A Quaranti-

nable Communicable Disease Exists, CDC (Apr. 1, 2022), available at

https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/Final-CDC-Order-Prohibiting-

Introduction-of-Persons.pdf.

84. The Termination Order claimed that it was “not a rule subject to notice and com-

ment under the Administrative Procedure Act.” Ex. A at 29. It did so on two putative bases. First it

asserted the good cause exception applied because “it would be impracticable and contrary to the

public interest.” Second, it asserted that the APA’s foreign affairs exception by claiming without of-

fering any detail or explanation that “this Order concerns ongoing discussions with Canada, Mexico,

and other countries regarding immigration and how best to control COVID-19 transmission over

shared borders.” Id.

https://www.foxnews.com/politics/texas-border-city-covid-positive-migrants-released-february-
last-week.
19
Texas v. Biden, 21-cv-00579 (N.D. Tex.)

21
 85. Even members of President Biden’s own party have criticized the Termination Or-

der. Senator Joe Manchin warned in a letter to President Biden that, “[w]ith encounters along our

southern border surging and the highly transmissible Omicron BA.2 subvariant emerging as the

dominate strain in the United States, now is not the time to throw caution to the wind” and cancel

the Title 42 policy.20

Harms to Plaintiffs

86. States “bear[] many of the consequences of unlawful immigration.” Arizona v. United

States, 567 U.S. 387, 397 (2012). They are, however, limited in their ability to “engage in” their own

immigration “enforcement activities.” Id. at 410. The States thus rely significantly on the federal

government to fulfill its duties under the immigration laws, particularly when Congress has created

mandatory obligations or otherwise limited the federal government’s discretion.

87. As a result, there is little the States can do about the thousands of aliens entering the

United States. Record numbers of aliens are already attempting to cross the border illegally.

88. DHS’s own statistics show the dramatic increases in the number of crossings into the

United States—even with Title 42 in place. Indeed, current levels of illegal crosses are at their high-

est levels in at least two decades, and perhaps ever. The following is DHS’s own chart graphically

showing these enormous increases in crossings:

20
Joe Manchin, Ltr. to President Biden, (Mar. 29, 2022), https://bit.ly/3J4e2dF.

22
Table 1: DHS Southwest Border Encounters By Month

Source: https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters

23
 89. DHS sources have indicated that “there have been more than 300,000 known ‘gota-

ways’ —migrants who were not apprehended or turned themselves in and who got past agents --

since fiscal year 2022 began on October 1st.”21 In addition, “former Border Patrol Chief Rodney

Scott said there had been approximately 400,000 gotaways in the entirety of FY 2021.” 22

90. Defendants’ unlawful termination of the Title 42 policy will induce a significant in-

crease of illegal immigration into the United States, with many migrants asserting non-meritorious

asylum claims. Indeed, press reports state that Defendants themselves predict that the Termination

Order will create an unprecedented surge at the border that will overwhelm Defendants’ capacity to

enforce immigration laws at the border—they predict that the daily number of aliens unlawfully try-

ing to enter the United States will nearly triple.23 White House Communications Director Kate Bed-

ingfield admitted on the record that the Termination Order will cause “an influx of people to the

border.”24 This predicted influx will injure the Plaintiff States in multiple ways, including through

increased expenditures on health care, education, and law enforcement, as well as through increased

numbers of crimes.

91. Another district court in this Circuit has found that reducing the likelihood that an

alien will be released into the United States reduces the number of aliens who attempt to enter the

United States illegally. Texas v. Biden, No. 2:21-cv-67, 2021 WL 3603341, at *6, *18–19 (N.D. Tex.

Aug. 13, 2021); cf. Zadvydas v. Davis, 533 U.S. 678, 713 (2001) (Kennedy, J., dissenting). (“An alien ...

21
Melugin, BillFox News, 62,000+ illegal immigrants got past Border Patrol agents in March: sources (April
1, 2022), https://fxn.ws/37fqLNq.
22
Id.
23
Nick Miroff and Maria Sacchetti, “Biden officials bracing for unprecedented strains at Mexi-
coborder if pandemic restrictions lifted,” The Washington Post, Mar. 29, 2022.
https://www.washingtonpost.com/national-security/2022/03/29/border-pandemic-title-42-
immigration/.
24
Maria Sacchetti and Nick Miroff, “Biden administration to lift pandemic border restrictions,” The
Washington Post, Mar. 30, 2022, https://www.washingtonpost.com/national-
security/2022/03/30/title-42-border-restrictions-no-longer-needed-public-health-cdc-says/.

24
has less incentive to cooperate or to facilitate expeditious removal when he has been released, even

on a supervised basis, than does an alien held at an [ICE] detention facility.”)

92. Defendants’ unlawful termination of the Title 42 policy creates incentives to cross

the border illegally by reducing the cost of being apprehended. Just as with the Migrant Protection

Protocols, by removing the carrot of admission into the United States, reduced the number of false

asylum claimants by requiring potential asylees to remain in Mexico, Texas, 2021 WL 3603341, at *6,

*18–19, the Defendants, by removing the stick of mandatory detention, increase the number of ille-

gal entries into the United States by erasing the possibility that an apprehension will result in

anything other than the freedom to remain in the United State

93. Since 1982, the Supreme Court has mandated that States provide public education to

school-age aliens not lawfully in the United States. Plyler v. Doe, 457 U.S. 202, 230 (1982). As a direct

result of the influx of migrants that the Termination Order will cause, some of whom will be minors,

the Plaintiff States will be compelled to spend additional moneys on education for these additional

immigrants. The Termination Order is thus a direct, but-for cause of these imminent injuries.

94. The presence of these aliens in each State violates each State’s quasi-sovereign inter-

est in its territory and the welfare of their citizens.

95. The Termination Order will cost Plaintiffs millions, as explained in further detail be-

low.

Arizona

96. As a border state, Arizona is acutely affected by modifications in federal policy re-

garding immigration.

97. Defendant DHS has previously recognized that Arizona “is directly and concretely

affected by changes to DHS rules and policies that have the effect of easing, relaxing, or limiting

immigration enforcement. Such changes can negatively impact [Arizona’s] law enforcement needs

25
and budgets, as well as its other important health, safety, and pecuniary interests of the State of Ari-

zona.” Exhibit B, Memorandum of Understanding Between DHS and the State of Arizona at 2.

DHS has also recognized that “rules, policies, procedures, and decisions that could result in signifi-

cant increases to the number of people residing in a community” will “result in direct and concrete

injuries to [Arizona], including increasing the rate of crime, consumption of public benefits and ser-

vices, strain upon the healthcare system, and harm to the environment, as well as increased econom-

ic competition with the State of Arizona 's current residents for, among other things, employment,

housing, goods and services.” Id. at 3.

98. Arizona is required to expend its scarce resources when DHS acts unlawfully to in-

duce increased illegal immigration. This includes resources expended by Arizona’s law enforcement

community.

99. Arizona bears substantial costs of incarcerating unauthorized aliens, which amounts

to tens of millions of dollars each year, as reflected by Arizona’s State Criminal Assistance Program

(SCAAP) requests, the great majority of which are not reimbursed by the federal government.

100. Arizona has approximately 275,000 to 365,000 immigrants living in the State that are

not lawfully in the United States; more than 50% of them do not have health insurance.25

101. Drug cartels use human trafficking routes to also traffic illegal drugs into the United

States. Increased illegal immigration means increased quantities of illegal drugs. For example, drug

25
The number of unauthorized aliens is notoriously difficult to calculate. Several studies, however,
estimate the number of unauthorized aliens in Arizona to be in this approximate range. See, e.g., Un-
authorized Immigrant Population Profiles, Migration Policy Institute,
https://www.migrationpolicy.org/programs/us-immigration-policy-program-data-
hub/unauthorized-immigrant-population-profiles#AZ (273,000, 54% uninsured); U.S. unauthorized
immigrant population estimates by state, Pew Research Center (2016),
https://www.pewresearch.org/hispanic/interactives/u-s-unauthorized-immigrants-by-state/
(275,000); The Fiscal Burden of Illegal Immigration, Federation for American Immigration Reform
(2017), http://fairus.org/sites/default/files/2017-09/Fiscal-Burden-of-Illegal-Immigration-2017.pdf
(365,000).

26
cartels coordinate surges of unauthorized immigrants who cross the border in large groups and then

make non-meritorious asylum claims. This serves as a distraction to Border Patrol personnel. While

all available Border Patrol personnel are busy processing these aliens’ asylum claims, they are unable

to patrol the border, which allows drug mules to enter the United States unimpeded. Individuals be-

lieved to be cartel drug smugglers are regularly caught on camera crossing the border, dressed in

camouflage and carrying weapons to protect their drug loads.26 Cartel scouts appear to even brazenly

“occupy strategically-selected hilltops for dozens of miles inside Arizona,” establishing a presence on

American territory to track Border Patrol movements and coordinate surges of aliens entering the

United States.27 Even the drugs themselves are becoming more dangerous, as smugglers are trading

large bags of marijuana for smaller packs of more potent “cocaine, fentanyl, heroin, [and] meth.”28

In December 2021, police in Scottsdale, Arizona seized 1.7 million fentanyl pills that were worth $9

million; they also seized ten kilograms of powdered fentanyl and one pound of methamphetamine.29

The seized drugs were from the Sinaloa Cartel.30 According to the DEA, “[t]he Sinaloa Cartel pri-

26
Brian Brennan, ‘People don’t need to die’: Border rancher deals with constant flow of migrants, drug packers,
KGUN 9 (May 20, 2019), https://www.kgun9.com/border-watch/people-dont-need-to-die-border-
rancher-deals-with-constant-flow-of-migrants-drug-packers
27
U.S. House of Representatives, Committee on Homeland Security, Testimony of Jim Chilton on “Ex-
amining the Effect of Border Wall on Private and Tribal Landowners”, (February 27, 2020),
https://homeland.house.gov/imo/media/doc/Testimony%20-%20Chilton1.pdf
28
Natasha Yee, As marijuana profits fade, cartels increasingly smuggle fentanyl across the border, (October 18,
2021), https://gilaherald.com/as-marijuana-profits-fade-cartels-increasingly-smuggle-fentanyl-
across-the-border/
29
Steven Hernandez, Scottsdale police, DEA seize record 1.7 million fentanyl pills in Arizona, Arizona Re-
public, (Dec. 16, 2021), https://www.azcentral.com/story/news/local/phoenix-
breaking/2021/12/16/authorities-arizona-seize-9-million-fentanyl-pills-narcotics/8929613002/
30
Id.

27
marily uses trafficking routes that go through Arizona,”31 and the Phoenix area is a major cartel drug

trans-shipment hub.32

Louisiana

102. Plaintiff Louisiana is also gravely injured by the Termination Order. Louisiana is re-

quired to stretch its scarce resources even further when DHS fails to carry out its statutory duties to

enforce immigration law. The Rule will create increased crime and drug trafficking in Louisiana’s

communities, requiring additional expenditure by law enforcement. In addition, by incentivizing fur-

ther illegal immigration, the Rule will force Louisiana to expend limited resources on education,

healthcare, public assistance, and general government services.

103. Defendant DHS has previously recognized that Louisiana “is directly and concretely

affected by changes to DHS rules and policies that have the effect of easing, relaxing, or limiting

immigration enforcement. Such changes can negatively impact [Louisiana’s] law enforcement needs

and budgets, as well as its other important health, safety, and pecuniary interests of the State of Ari-

zona.” Exhibit C, Memorandum of Understanding Between DHS and the Louisiana Department of

Justice at 2. DHS has also recognized that “rules, policies, procedures, and decisions that could re-

sult in significant increases to the number of people residing in a community” will “result in direct

and concrete injuries to [Louisiana], including increasing the rate of crime, consumption of public

benefits and services, strain upon the healthcare system, and harm to the environment, as well as

increased economic competition with the State of Louisiana's current residents for, among other

things, employment, housing, goods and services.” Id. at 3.

31
Id.
32
Alex Gallagher, Record fentanyl seizure by Scottsdale cops, DEA, Scottsdale Progress, (Dec. 19, 2021),
https://www.scottsdale.org/news/record-fentanyl-seizure-by-scottsdale-cops-dea/article_fbf7c02e-
6074-11ec-91ab-b35932ed58da.html

28
 104. Louisiana has approximately 70,000 to 78,000 aliens living in the State that are not

lawfully in the United States; more than 70% of them do not have health insurance.33

105. DHS operates multiple alien detention facilities in the Western District of Louisiana,

including the Pine Prairie ICE Processing Center in Pine Prairie, Louisiana, and others in Oberlin,

Plain Dealing, Jonseboro, Jena, Natchitoches, Monroe, Ferriday, Basile, and Winnfield, Louisiana.

DHS releases illegal aliens from those detention facilities to Louisiana cities throughout the Western

District, including Lafayette, Monroe and Shreveport. Releases in Lafayette are so common that a

California business advertises “immigration bail bonds in Lafayette” and urges illegal immigrants and

their families to “contact our Lafayette bail bondsmen” “if you have a family member who finds him

or herself in custody of [DHS].” Upon information and belief, DHS “paroles” many illegal immi-

grants into Louisiana cities without even the minimal security of a bond. The Termination Order

will increase the use of DHS detention facilities and lead to the increased release of aliens into the

Western District and throughout the State.

Missouri

106. Missouri is directly and adversely affected by increases in illegal immigration at the

southern border. Based on recent statistics, approximately 56 out of every 1,000 unlawful aliens who

enter the United States end up residing in Missouri. These unlawful aliens impose pocketbook inju-

ries on Missouri in the form of education, healthcare, and criminal-justice costs. These pocketbook

injuries are irreparable because Missouri has no plausible recourse to recoup them.

33
See, e.g., Unauthorized Immigrant Population Profiles, Migration Policy Institute,
https://www.migrationpolicy.org/programs/us-immigration-policy-program-data-
hub/unauthorized-immigrant-population-profiles#LA (70,000, 73% uninsured); U.S. unauthorized
immigrant population estimates by state, Pew Research Center (2016),
https://www.pewresearch.org/hispanic/interactives/u-s-unauthorized-immigrants-by-state/
(70,000); The Fiscal Burden of Illegal Immigration, Federation for American Immigration Reform
(2017), http://fairus.org/sites/default/files/2017-09/Fiscal-Burden-of-Illegal-Immigration-2017.pdf
(78,820).

29
 107. “Missouri likewise faces a cost of verifying lawful immigration status for each addi-

tional customer seeking a Missouri driver’s license.” Texas, 2021 WL 3603341, at *10.The total costs

to … Missouri … of providing public education for illegal alien children will rise in the future as the

number of illegal alien children present in the State increases.” Id.

108. “Some aliens who … are being released or paroled into the United States and will

use state-funded healthcare services or benefits in … Missouri.” Id. “The total costs to the State will

increase as the number of aliens within the state increases.” Id.

109. Missouri is also a destination state and hub for human-trafficking crimes within the

United States, due to its situation at the confluence of several major interstate highways. Such crimes

disproportionately afflict illegal aliens, and these crimes (and other crimes committed by illegal al-

iens) impose irreparable law-enforcement and criminal-justice costs on Missouri. As another district

court recently found, “[s]ome aliens who … are being released or paroled into the United States and

will commit crimes in … Missouri,” and “Missouri is … a destination and transit State for human

trafficking of migrants from Central America who have crossed the border illegally.” Id. Both crimes

committed by unlawful aliens, and human-trafficking crimes committed by and against unlawful al-

iens, inflict irreparable costs on Missouri, both in law-enforcement costs and providing resources for

victims. “Human trafficking” arising from and involving increases in unlawful immigration “causes

fiscal harm to … Missouri.” Id.

110. An increased influx of illegal aliens also affect the labor market and reduce job op-

portunities for U.S. citizens and lawfully present aliens in Missouri, as illegal aliens frequently com-

pete for jobs at lower wages than workers who are lawfully present. Missouri is a State with large

agricultural sector. The presence of large numbers of unlawful aliens distorts Missouri’s job markets

and inflicts irreparable injury on both the State and its citizens.

30
 All Plaintiffs

111. The CDC’s Termination Order will result in the entry of tens or hundreds of thou-

sands of aliens unlawfully entering the United States, who would not be able to gain entry into the

United States. This, in turn, will cause Plaintiff States to spend money on healthcare, detention, edu-

cation, and other services for aliens that would otherwise not have to be spent. For example, Arizo-

na, Louisiana, and Missouri are required to spend state monies on Emergency Medicaid, including

for unauthorized aliens. 42 C.F.R. § 440.255(c).

112. By ignoring the requirements of the INA and PHSA, and thus facilitating the entry

of unauthorized aliens into the United States, the Termination Order encourages a greater influx of

unauthorized aliens into Plaintiff States, further increasing law enforcement costs in Plaintiff States,

including costs related to coordinated activity between federal and state law enforcement agencies in

the pursuit of suspected unauthorized aliens.

113. Federal law also requires that emergency medical services be provided to unlawfully

present aliens. 42 C.F.R. § 440.255(c).

114. Plaintiff States’ emergency medical providers deliver millions of dollars in medical

services to unauthorized aliens each year. These costs are not fully reimbursed by the federal gov-

ernment or the aliens themselves.

115. While these costs are impactful in typical years, the COVID-19 pandemic makes the

potential for harm to Plaintiff States through additional emergency healthcare costs to unauthorized

aliens exceptionally high.

116. The Termination Order necessarily increases the number of aliens in Arizona, Loui-

siana, and Missouri who are subject to receiving such medical care at the expense of Plaintiff States’

healthcare institutions.

31
 117. The Termination Order will allow a far greater number of aliens with meritless asy-

lum claims to enter the United States. Such aliens rarely leave the United States of their own accord,

and Defendants rarely remove such aliens, even after their asylum claims have been denied. The

Termination Order will therefore increase Plaintiff States’ costs of providing emergency medical care

to these individuals who would otherwise never have been allowed into the United States. Addition-

ally, the Termination Order encourages a greater influx of unauthorized aliens into Plaintiff States,

further increasing the population of unauthorized aliens for whom Plaintiff States must bear the cost

of emergency medical care, education, and other social services.

CLAIMS FOR RELIEF

COUNT I
Administrative Procedure Act, 5 U.S.C. § 706(2)(D)
Lack of Notice and Comment

118. Plaintiff States repeat and incorporate by reference each of the Complaint’s allega-

tions stated above.

119. The APA provides that courts must “hold unlawful and set aside agency action” that

is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).

120. The APA requires agencies to publish notice of all “proposed rule making” in the

Federal Register, id. § 553(b), and to “give interested persons an opportunity to participate in the

rule making through submission of written data, views, or arguments,” id. § 553(c). The Termination

Order, therefore, only can be issued, if at all, pursuant to notice-and-comment rulemaking under the

APA. 5 U.S.C. § 553.

121. Such requirements “are not mere formalities” but rather “are basic to our system of

administrative law.” NRDC v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 115 (2d Cir. 2018).

“Section 553 was enacted to give the public an opportunity to participate in the rule-making process.

It also enables the agency promulgating the rule to educate itself before establishing rules and pro-

32
cedures which have a substantial impact on those who are regulated.” U.S. Dep’t of Labor v. Kast Met-

als Corp., 744 F.2d 1145, 1153 n.17 (5th Cir. 1984); see also NRDC, 894 F.3d at 115 (notice and com-

ment serves “the public interest by providing a forum for the robust debate of competing and fre-

quently complicated policy considerations having far-reaching implications and, in so doing, foster

reasoned decisionmaking”); Spring Corp. v. FCC, 315 F.3d 369, 373 (D.C. Cir. 2003) (notice and

comment “ensures fairness to affected parties[] and provides a well-developed record that enhances

the quality of judicial review”).

122. The Defendants did not conduct the statutorily required notice-and-comment pro-

cess for the Termination Order.

123. The Termination Order is not an interpretive rule, general statement of policy, nor is

it a rule of agency organization, procedure, or practice otherwise exempt from notice-and-comment

rulemaking. Rather, the Termination Order is a substantive rule for APA purposes because it binds

agency discretion. 5 U.S.C. § 551(4)–(5). Further, it is a final order because it represents the culmina-

tion of the agency’s consideration and affects the rights and obligations of those to whom they ap-

ply. Indeed, the title of the Termination Order the “right” affected by the rule, specifically “the right

to introduce certain persons from countries where a quarantinable communicable disease exists.”

Ex. A at 1.

124. The CDC offered two bases for excusing notice-and-comment requirements: the

good cause exception and the foreign affairs exception. Ex. A at 29. In assessing whether good cause

exists, this Court “must rely only on the ‘basis articulated by the agency itself’ at the time of the

rulemaking. ‘Post hoc explanations’” do not suffice. United States v. Johnson, 632 F.3d 912, 928 (5th

Cir. 2011) (cleaned up).

33
 125. The good-cause exception to the APA’s notice-and-comment requirement does not

apply here, and Defendants’ rationale for invoking that exception is insufficient as a matter of law.

See supra ¶¶15-20.

126. Defendants’ attempt to invoke the good cause exception ignores that there is a dif-

ference between putting in place emergency measures against the backdrop of a rapidly escalating

pandemic of epic proportions versus taking action in the context of a slowly dissipating pandemic—it

may be an emergency at the start of the pandemic, when quick action is needed, but not when it is

tapering off slowly at a predictable pace. For example, there was ample time for Defendants to noti-

fy the public of its intention to revoke and to gather and consider comments on that proposal. On

February 2, 2021, President Biden signed Executive Order 14010, in which he ordered that “[t]he

Secretary of HHS and the Director of CDC, in consultation with the Secretary of Homeland Securi-

ty, shall promptly review and determine whether termination, rescission, or modification of the [Ti-

tle 42 orders] is necessary and appropriate.” 86 Fed. Reg. 8267. Defendants have therefore been

considering the ending Title 42 for over 14 months. Defendants have had ample time to put poten-

tial termination up for notice-and-comment. And Defendants’ preparations for the Termination Or-

der has apparently been continuous up until the moment of its issuance. On March 17, 2022, in re-

sponse to a question about the possible termination of the Title 42 policy, White House spokesper-

son Vedant Patel affirmed that “the Administration is doing our due diligence to prepare for poten-

tial changes at the border.”34 Apparently, however, that diligence did not include fulfilling the Ad-

ministration’s legal obligation under the APA to subject their planned policy change to notice and

comment.

34
Jonathan Swan and Stef W. Kight, “Scoop: Biden officials fear "mass migration event" if COVID
policies end,” Axios, Mar. 17, 2022, https://www.axios.com/biden-border-mexico-migrants-title-42-
a91b6441-2197-463f-ab1f-2435824a9566.html.

34
 127. Nor does the foreign affairs exception to the APA’s notice-and-comment require-

ment apply. “[T]he foreign affairs exception requires the Government to do more than merely recite

that the Rule ‘implicates’ foreign affairs.” East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 775 (9th

Cir. 2018). A mere “reference in [a] Rule ... to our ‘southern border with Mexico’ is not sufficient.”

Id. Thus, “the foreign affairs exception applies in the immigration context only when ordinary appli-

cation of the public rulemaking provisions will provoke definitely undesirable international conse-

quences…. [I]t would be problematic if incidental foreign affairs effects eliminated public participa-

tion in this entire area of administrative law.” Id. at 776 (cleaned up) (citations and quotation marks

omitted).

128. In the immigration context, the foreign affairs exception only applies if “the public

rulemaking provisions [w]ould provoke definitely undesirable international consequences”; other-

wise, “the foreign affairs exception would become distended.” Zhang v. Slattery, 55 F.3d 732, 744 (2d

Cir. 1995) (citation omitted), superseded by statute on other grounds, by 8 U.S.C. § 1101(a)(42). In

the Termination Order, Defendants never even claim at all that the Title 42 policy–either its contin-

uance or termination—implicates any “undesirable international consequences.” Instead, Defend-

ants attempt to invoke the foreign affairs exception merely by making the obvious and unexception-

al disclosure that the Title 42 policy “concerns ongoing discussions with Canada, Mexico, and other

countries regarding immigration.” Ex. A at 29. This weak attempt to invoke the foreign affairs ex-

ception is insufficient. That the United States is engaged in “ongoing discussions with Canada, Mex-

ico, and other countries” id. at 29, does not entitle the Defendants to except the Termination Order

from the APA’s procedures. There is no evidence that complying with the APA’s rulemaking proce-

dures would cause a diplomatic incident.

35
 129. Under these circumstances, Defendants’ failure to comply with the APA’s notice and

comment provisions is fatal to the Rule. Id. at 928-29 (“Without good cause, we must enforce Con-

gress’s choice in favor of the traditional, deliberative rulemaking process.”).

COUNT II
Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (C)
Arbitrary and Capricious Agency Action
Contrary to 8 U.S.C. §§ 103(g)
130. Plaintiff States repeat and incorporate by reference each of the Complaint’s allega-

tions stated above.

131. Under the APA, a court must “hold unlawful and set aside agency action” that is ar-

bitrary or capricious or otherwise not in accordance with law or contrary to the Constitution. 5

U.S.C. §706(2)(A).

132. “[A]gency action is lawful only if it rests on a consideration of the relevant factors”

and “important aspects of the problem.” Michigan v. EPA, 576 U.S. 743, 750-52 (2015) (requiring

“reasoned decisionmaking”). This means agencies must “examine all relevant factors and record evi-

dence.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017).

133. For starters, an agency cannot “entirely fail[] to consider an important aspect of the

problem.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Gresham v.

Azar, 363 F. Supp. 3d 165, 177 (D.D.C. 2019) (“The bottom line: the Secretary did no more than

acknowledge—in a conclusory manner, no less—that commenters forecast a loss in Medicaid cover-

age.”).

134. Further, agencies must actually analyze the relevant factors. “‘Stating that a factor

was considered ... is not a substitute for considering it.’” Texas v. Biden, 10 F.4th 538, 556 (5th Cir.

2021) The agency must instead provide more than “conclusory statements” to prove it considered

the relevant statutory factors. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016).

36
 135. The Termination Order is arbitrary and capricious for several independently suffi-

cient reasons.

136. First, Defendants failed to estimate or account for the costs to the States of the Ter-

mination Order, such as the 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.

137. Federal policy as it relates to immigration “has more than just an incidental effect on

the States” because “the States engage in an immigration cost-sharing partnership” with the federal

government. Arizona, 2022 WL 839672, at *24. Defendants, therefore “cannot so easily dismiss how

[their] administration of the immigration laws impacts the States.” Id. “Immigration ‘ha[s] a discern-

able impact on traditional state concerns,’ considering that ‘unchecked unlawful migration might im-

pair the State’s economy generally, or the State’s ability to provide some important service.’” Id. at

*30 (quoting Plyler, 457 U.S. at 228 n.23) (alteration in original).

138. Thus, when DHS “only considered whether its enforcement policies generally influ-

ence state expenditures” and “gave no explanation of how its policy ... might increase state criminal

justice expenses,” the Southern District of Ohio recently found that DHS had “‘entirely failed to

consider’ an important consequence of its policy,” and its rule was therefore arbitrary and capricious.

Id. (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). The CDC has committed the same APA violation here by disclaiming any responsibility for

analyzing negative impacts on the States from its Termination Order.

139. Second and relatedly, the Termination Order is arbitrary and capricious because the

Defendants did not consider Plaintiffs States’ reliance interests in the continuation of the Title 42

policy. In particular, the Defendants did not consider whether States relied on continuation of the

37
Title 42 policy when Plaintiffs determined how they would marshal and distribute their resources to

address the public-health, safety, and economic effects of the COVID-19 pandemic, as well as their

decisions about resource allocations to deal with the number of unauthorized aliens entering their

states.

140. Defendants’ cursory dismissal of the existence of any reliance interests in the Title 42

policy misses the mark. Ex. A at 23-24. Their analysis is entirely legal in nature and fails to undertake

any kind of policy analysis of the actual real-world effects of the Title 42 policy and how States

might have legitimately relied on it. The Termination Order even acknowledges that “state or local

government[s]” may have “reliance interest[s]” in the Title 42 policy, but characterizes such interests

as “misplaced” and claims that delaying the effective date of Termination Order until May 23 would

be enough time for states “to adjust their planning in anticipation of the full resumption of Title 8

border processing.” Id. at 29. The Termination Order offers no explanation, however, of how 53

days might be enough time for states to “adjust their planning,” when the Title 42 policy has been in

place for more than two years and when Defendants have in the meantime abdicated most of their

other border enforcement obligations, thus leaving Title 42 as the only remaining bulwark against

the rising flood of migrants pouring across the border illegally. The Termination Order is arbitrary

and capricious because it utterly ignores Plaintiffs’ reliance interests, and it must therefore be set

aside. See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913-14 (2020).

141. Third, Defendants also failed to consider the immigration consequences of the Ter-

mination Order. Indeed, this failure is particularly brazen, as press reports state that Defendants

have made internal assessments of the immigration effects, and are predicting unprecedented waves

of new illegal immigration. See supra ¶¶7, 90. Indeed, the Termination Order itself acknowledges the

likelihood of these public health and immigration consequences, as it delays the effective date of

Termination Order until May 23, 2022 “to give DHS time to implement additional COVID-19 miti-

38
gation measures” and “to provide DHS time to implement operational plans for fully resuming Title

8 processing.” Ex. A at 26, 28. By delaying the effective date until May 23, Defendants thus recog-

nize the Termination Order will have consequences and that they have the authority and capacity to

delay the Termination Order to account for immigration-related consequences. But they failed to

analyze whether they should exercise that authority in a different manner given the enormous immi-

gration consequences that even they predict will occur.

142. Fourth, Defendants failed to consider or arbitrarily rejected obvious alternatives to

Termination Order, such as continuing the Title 42 policy, rigorous enforcement of immigration

laws to deter illegal immigration, or implementing in good faith the Migrant Protection Protocols

(“MPP”) and withdrawing their challenge to the Fifth Circuit’s invalidation of it.

143. Fifth, Defendants failed to consider obvious and relevant consequences of the Ter-

mination Order, such as the public health and public policy consequences of the emergence of new

variants of the COVID-19 virus.

144. Sixth, Defendants failed to justify their deviation from prior practice of continuing

the Title 42 policy.

145. Seventh, Defendants have failed to analyze and consider how their own failure to

maintain alien detention capacity affects the purported need to parole aliens into the United States.

For example, at the same time Defendants claim that their detention facilities are at overcapacity,

Defendants have submitted budget requests to Congress requesting for a decrease in funding for de-

tention and detention facilities.35 Moreover, Defendants have affirmatively degraded their own de-

35
Eileen Sullivan, “Biden to Ask Congress for 9,000 Fewer Immigration Detention Beds,” New
York Times, Mar. 25, 2022, https://www.nytimes.com/2022/03/25/us/politics/biden-
immigration-detention-beds.html.

39
tention capacity by cancelling contracts with private detention facilities and by closing detention fa-

cilities.36

146. Eighth, Defendants failed to failure to consider alternative timing of the Termination

so that the Termination would not coincide with the current unprecedented, continuing surge of

migrants unlawfully crossing the border.

147. Ninth, Defendants failed to consider accumulated groups of aliens (e.g. Haitians) wait-

ing on the Mexican side of the border who are waiting to cross the moment Title 42 is rescinded.37

“Department of Homeland Security intelligence estimates that perhaps 25,000 migrants already are

waiting in Mexican shelters just south of the border for Title 42 to end.”38 A federal law enforce-

ment official told CNN that the number of aliens in northern Mexico waiting to cross illegally into

the United States is “[b]etween 30,000 to 60,000.”39

148. Tenth, Defendants failed adequately to consider the spread of infection in DHS facili-

ties resulting from Title 42 termination, because the INA requires that aliens awaiting removal pro-

ceedings must be detained.

149. Eleventh, Defendants failed to consider the interaction of the Termination with ter-

mination of MPP.

36
Id.; Priscilla Alvarez, “Biden administration to close two immigration detention centers that came
under scrutiny,” CNN. May 20, 2021, https://www.cnn.com/2021/05/20/politics/ice-detention-
center/index.html.
37
Maria Sacchetti and Nick Miroff, “Biden administration to lift pandemic border restrictions,” The
Washington Post, Mar. 30, 2022, https://www.washingtonpost.com/national-
security/2022/03/30/title-42-border-restrictions-no-longer-needed-public-health-cdc-says/ (“Thou-
sands [of] Haitian migrants are believed to be waiting in Mexico in anticipation of the end of Title
42, according to DHS officials familiar with the government’s planning and preparations.”).
38
Jonathan Swan and Stef W. Kight, “Scoop: Biden officials fear "mass migration event" if COVID
policies end,” Axios, Mar 17., 2022, https://www.axios.com/biden-border-mexico-migrants-title-42-
a91b6441-2197-463f-ab1f-2435824a9566.html.
39
Catherine E. Shoichet, “We're expecting a big increase in migrants at the US-Mexico border. But
this time is different.” CNN, Apr. 1, 2022, https://www.cnn.com/2022/03/31/politics/border-
title-42-whats-next-cec/index.html.

40
 150. This list is not exclusive but merely illustrative of the Termination Order’s obvious

deficiencies. For each of these independently sufficient reasons and others, the Rule is arbitrary and

capricious.

PRAYER FOR RELIEF

NOW, THEREFORE, Plaintiffs request an order and judgment:

1. Declaring, under 28 U.S.C. §2201, that the Termination violates the APA because it was

promulgated without notice and comment;

2. Declaring, under 28 U.S.C. § 2201, that the Termination Order is arbitrary and capricious

and unlawful under the APA;

3. Vacating the Termination Order;

4. Preliminarily and permanently enjoining, without bond, Defendants from applying the

Termination Order;

5. Awarding Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees,

pursuant to 28 U.S.C. § 2412; and

6. Granting any and all other such relief as the Court finds appropriate.

41
Dated: April 3, 2022 Respectfully submitted,

By:/s/ Elizabeth B. Murrill

MARK BRNOVICH ELIZABETH B. MURRILL (La #20685)

Attorney General Solicitor General
BRUNN (“BEAU”) W. ROYSDEN III * J. SCOTT ST. JOHN (La #36682)
Solicitor General Deputy Solicitor General
DREW C. ENSIGN * LOUISIANA DEPARTMENT OF JUSTICE
Deputy Solicitor General 1885 N. Third Street
JAMES K. ROGERS * Baton Rouge, Louisiana 70804
Senior Litigation Counsel Tel: (225) 326-6766
OFFICE OF THE ARIZONA ATTORNEY [email protected]
GENERAL [email protected]
2005 North Central Avenue
Phoenix, AZ 85004 Counsel for Plaintiff State of Louisiana
[email protected]
[email protected] ERIC S. SCHMITT
[email protected] Attorney General
D. JOHN SAUER *
Counsel for Plaintiff State of Arizona Solicitor General
OFFICE OF THE MISSOURI
ATTORNEY GENERAL
Supreme Court Building
P.O. Box 899
Jefferson City, MO 65102
Phone: (573) 751-3321
[email protected]

Counsel for Plaintiff State of Missouri

42