COVID-Related Restrictions on Entry into the United States Under Title 42: Litigation and Legal Considerations

Using Section 265 authority (also known as “Title 42”) during the COVID-19 pandemic, as well as the executive branch’s attempt to repeal the Title 42 restrictions on entry, has been the subject of ongoing litigation. Most recently, in November 2022, a federal district court ruled that the current Title 42 order was unconstitutional and ordered that the policy be terminated. However, on December 27, 2022, the Supreme Court stayed the district court order’s implementation while the Court considered whether multiple states may intervene in the litigation to defend the policy.

This white paper provides an overview of Section 265, discusses its application during the COVID-19 pandemic, examines ongoing litigation, and then considers congressional considerations.