Project 2025 Tracker / What’s done, what’s next

5. Department of Homeland Security · Major · Needs Congress

Create a Title 42-style expulsion authority inside Title 8

Blocked

147 5. Department of Homeland Security

“Title 42 authority in Title 8. Create an authority akin to the Title 42 Public Health authority that has been used during the COVID-19 pandemic to expel illegal aliens across the border immediately when certain non-health conditions are met, such as loss of operational control of the border.”

What has happened

  1. Blocked

    The Solicitor General petitioned for certiorari (Mullin v. RAICES, No. 26-239; response due 2026-09-23), asking whether Proclamation 10888 and its guidance are lawful and whether 8 U.S.C. §1252(f)(1) bars the class-wide relief. The D.C. Circuit denied rehearing on 2026-07-23 and its judgment stands pending the petition — the docket records no application to stay the mandate — so the injunction remains in force; SCOTUSblog reports the August 2025 partial stay still lets the asylum restrictions operate.

  2. Blocked

    The D.C. Circuit (Childs, J.) affirmed: the INA's power to suspend entry by proclamation does not carry the power to remove people already present without the INA's removal procedures or protections; the class certification and vacatur were upheld (Walker, J., concurring in part and dissenting in part).

  3. Blocked

    The D.C. Circuit dissolved its administrative stay and granted the government's stay motion only in part: it narrowed the class and stayed the parts of the order concerning asylum (the vacatur of the asylum guidance, the injunction against removal without complying with the asylum statute, and the declaration that the Proclamation cannot restrict asylum). It denied a stay as to withholding of removal and Convention Against Torture protection, so summary expulsion without those screenings stayed enjoined while the appeal was expedited.

  4. Blocked

    In RAICES v. Noem (D.D.C. No. 25-cv-306) Judge Moss granted partial summary judgment, certified a class of everyone subject to the Proclamation, declared the implementing guidance unlawful and vacated it, and enjoined summary removals under the Proclamation without the INA's asylum and withholding procedures; the class-wide order was postponed 14 days for an appeal.

  5. Attempted

    Without new legislation, Proclamation 10888 ("Guaranteeing the States Protection Against Invasion") invoked INA §§212(f) and 215(a) and Article II to declare an invasion for want of "operational control of the border", suspend entry across the southern border, bar those who cross from invoking §208 asylum, and direct DHS to "repel, repatriate, or remove" them — an executive stand-in for the statutory expulsion authority the Mandate asked Congress for.

Research log

What was searched, and what didn’t count as evidence

Research notes

  • No bill creating a Title 8 expulsion authority was found among bills in the 119th Congress (bill-title search for “expel”, “expulsion”, “operational control”, “Title 42”; the only hit, S. 1977 “REMOVE Act”, was introduced 2025-06-05 and not acted on). The Status therefore tracks the executive workaround and the courts’ response to it.
  • Companion cases on the same Proclamation: Las Americas Immigrant Advocacy Center v. Noem, D.D.C. 1:25-cv-00418 (filed 2025-02-12) — CourtListener docket, not readable without auth; lead only.
  • CourtListener’s records for the D.D.C. opinion (opinion 10622063), the Aug. 2025 order (10646400) and the April 2026 opinion (10847684) were the finding aids; the Evidence URLs are the PDFs those records link to, which were read in full.
Action
create
Object
Title 8 expulsion authority
ID
346