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Gerald Neuman, The Afterlife of "Title 42": Autopsy and Reformation (Harv. Pub. L. Working Paper No. 24-23, 2025).


Abstract: From March 2020 to May 2023, millions of noncitizens were expelled from the United States without a hearing under the so-called "Title 42" process. The government claimed that an obscure public health law ousted all the substantive and procedural rights that normally constrain immigration enforcement, and used it as a pretext to rapidly eject refugees at the southern border. The CDC's "Title 42" orders have now expired, but the regulation that authorized them remains in force and could be reactivated at any time. Instead of treating this episode as closed, this Article closely examines the hasty rise and slow demise of the "Title 42" regime, and the litigation it spawned, in search of lessons for the future. The "Title 42" regulation invites abuse, and would distort even a well-intentioned response to the next major pandemic. The regulation must be repealed or rewritten, and the Article discusses how it should be reformed.