Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
- Asylum seekers
Outcome of the decision
The court enjoined and restrained the federal government from enforcing two orders issued by the Centers for Disease Control (CDC) to the extent that the orders excepted children attempting to cross the border illegally without the presence of an adult (Unaccompanied Alien Children UAC) from the expedited process of detention and removal of noncitizens apprehended at or near the border.
The government must detain individuals who cross or attempt to cross the border illegally if the government suspects that they have a "communicable disease of public significance" or come from a country where the disease is prevalent. If the person has a contagious disease, the person is deemed inadmissible and can be removed from the United States without a hearing. A preliminary injunction requires the movant must prove: (1) a likelihood to succeed on the merits of the case; (2) a likelihood to suffer substantial irreparable harm; 3) in a balance of equity, if the injunction is denied, the movant will suffer more significant harm than the nonmovant; and (4) it is in the public's best interest to grant the injunction.
Here, the court found that Texas was likely to succeed on the merits because the CDC orders did not offer a reasonable explanation to except UAC from being detained to determine whether they have Covid-19. Thus, Texas was likely to prove that the CDC orders were arbitrary and capricious. The court found that Texas will likely suffer irreparable harm because the entry of UAC will perpetuate the public health crisis and will harm Texas healthcare workers. In a balance of equity, Texas would suffer greater harm than the government if the injunction is denied because Texas has suffered and would continue suffering significant financial losses because Texas has to maintain its State health and safety. Also, the court found that it is in the public's best interest to grant the injunction because the public is interested in reducing illegal immigration.
Thus, the court granted the preliminary injunction to prevent the government from excepting unaccompanied children from being detained to determine whether they have Covid-19.
Facts of the case
In October 2020, the CDC issued an order to prevent the entry of individuals who had Covid-19. The purpose of the order was “to protect the public health from an increase in the serious danger of the introduction of Covid-19." In February 2021, the CDC issued a new order, excepting UAC from being detained and removed from the United States. Following this order, there was a surge of illegal border crossing. As a result, Texas filed a lawsuit to challenge the order. The CDC issued two orders, in July 2021 and another in August 2021, superseding the February 2021 order. The August 2021 order excepted unaccompanied non-citizen children from being detained and removed from the United States because they did not pose "a significant health risk." The CDC believed that UAC did not need to be detained to prevent the spread of Covid-19 because there were available multiple mitigating measures such as testing centers and vaccines. As a result, the State of Texas filed a Motion for a Preliminary Injunction seeking to enjoin and restrain the federal government from enforcing both orders.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
Texas is likely to succeed on the merits of the case. The court reasoned that the CDC orders arbitrarily departed from Section 265 of Title 42 – The Public Health and Welfare Act because Title 42 enables the Government to prohibit the entry of persons to the United States to prevent the spread of infectious diseases, and the orders provided an exception without an explanation. The Government argued that the CDC orders had a proper explanation supporting the exception and that the exception was within the discretion of the CDC and outside of judicial review. The CDC believed that UAC did not need to be detained to prevent the spread of Covid-19 because there were available multiple mitigating measures such as testing centers and vaccines. The court reasoned that the Government had not explained the exception reasonably because Covid-19 remains a threat, and the orders did not explain how the exception would prevent the spread of Covid-19 in the United States. Moreover, the court reasoned that the Government did not consider Texas has different issues and interests concerning unlawful immigration due to its location at the United States border. Thus, given that the Federal agencies did not offer, as required, a reasonable explanation for inconsistencies, the court could review the orders.
As the Supreme Court has found before, "public safety interest can constitute irreparable harm." Texas argued that the CDC orders caused an influx of illegal immigrants and that such an influx will increase healthcare spending that monetary damages would not repair. The court reasoned that Texas has police power to ensure the health and welfare of its people and that the influx of immigrants causes an increase in health care expenditures. Thus, the court found that Texas is suffering and will continue suffering irreparable harm.
Texas will suffer greater harm than the Government if the injunction is denied. Texas has suffered and will continue suffering significant financial losses because Texas has to maintain its people's health and safety. The Government argued that the injunction would harm the interest of the Department of Homeland Security in "carrying out an efficient and effective immigration system." Such an argument did not persuade the court because the Fifth Circuit previously found that a state's financial losses outweigh inefficiencies caused by an injunction. On the other hand, the court reasoned that the Government would not suffer any harm because they would only have to resume enforcing Title 42. Thus, the court found that Texas would suffer more significant harm than the Government if the court granted the temporary injunction.
The court found that it is in the public's best interest to grant the injunction because the public has an interest in reducing illegal immigration.
Conclusions of the deciding body
The court enjoined and restrained the federal government from enforcing the two orders issued by the (CDC) to the extent that the orders excepted UAC from detention and removal. Even though policy decisions such as the CDC orders are generally beyond judicial review, they are reviewable when they are arbitrary and capricious. Here, the orders had the purpose of preventing the spread of Covid-19 but excepted UAC from Title 42 procedures without a reasonable explanation. This decision caused and continues to cause irreparable harm to Texas because the orders have caused an influx of illegal immigrants.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to asylum
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Immigration and Nationality Act, 8 U.S.C. §§1101–1537
- The Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135
- Public Health Services Act, 42 U.S.C. § 265
- 10th Amendment to the United States Constitution
- 8 U.S. Code § 1158
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. immigrants’ fundamental rights
- Health (public) v. access to health services
Impact on Legislation/Policy
The CDC issued a new order on March 11, 2022. In the new order, the CDC terminated all prior orders including the August 2021 order. In the new order, the CDC terminated all CDC Order issued pursuant to Title 42 sections 265 as they apply to Unaccompanied children. The CDC also issued a media statement explaining the new order.
CDC Order – March 11, 2022
CDC- Media Statement
Also, the decision has been discussed and criticized by multiple organizations.
Impact on national case law
There is an expectation that this case will be further litigated.
After, the CDC issued a new order on March 11, 2020. The court issued a new order asking “the Parties to file a Joint Status Report on or before March 18, 2022, at 5:00 p.m. appraising the Court of any remaining issues and next steps in this litigation. (Ordered by Judge Mark Pittman on 3/14/2022) (sre) (Entered: 03/14/2022).”
On On March 24, 2022, the court issued another order asking the Parties to file a new joint status report to propose the next steps in this case on or before April 7, 2022. (Ordered by Judge Mark Pittman on 3/24/2022) (mmw) (Entered: 03/24/2022)