The only unity Joe Biden is producing for Americans is in disapproval of his performance in office. Both sides of the aisle are taking shots at him for his handling of the illegal immigrant crisis, for example. In an odd twist, the Biden administration finds itself in federal court defending its continuance of a Trump-era policy on asylum.

More specifically, the Biden administration is arguing in support of Title 42, the rarely used public health policy that allows the Border Patrol to immediately turn back migrants over concerns of a contagious illness. In this case, it is the coronavirus pandemic. Migrants don’t have to be screened for asylum before being expelled at the border using Title 42. When the coronavirus pandemic began to spread in 2020, the CDC recommended that the Trump administration activate Title 42 to prevent the spread of the virus coming up from the southern border. Trump enacted Title 42 through an emergency order at the suggestion of the CDC. At the time, Democrats objected, claiming that there is no provision in the law that allows migrants to be expelled without due process. During the crisis at the border caused by thousands of Haitian migrants at Del Rio, Texas, the open borders crowd was in an uproar when DHS Secretary Mayorkas said that Title 42 would be used to help expel migrants at the border.

“…we have the authority to expel individuals under the laws that Centers for Disease control have,” Mayorkas told ABC News. “It is their public health authority under Title 42 and that is what we will bring to bear to address the situation in Del Rio, Texas.”

The Biden administration had to admit that Title 42 works as an option to secure the border, especially during a pandemic, even before the Omicron variant arrived. Now the administration finds itself in court and justifying the policy in the name of following the science.

Sharon Swingle, a Justice Department lawyer representing the administration during a nearly two-hour hearing before the D.C. Circuit Court of Appeals, said the migrant expulsion policy, known as Title 42, is rooted in “scientific expertise.” She warned that its sudden termination could increase coronavirus transmission inside Border Patrol facilities and pose a “serious danger” to public health.

Swingle called the possibility of the court requiring the government to process all migrants, particularly single adults, under regular immigration procedures an “alarming specter.”

“The government’s goal is to get back to a state of orderly immigration processing for everyone, but currently, in CDC’s view, the public health realities don’t permit that,” said Swingle, who also cited the recent rapid spread of the Omicron variant.

The Trump administration expelled 400,000 illegal migrants, while the Biden administration has expelled over one million since he took office. The only other time that Title 42 has been used was in 1929. Some members of the current administration and other progressives are against the continued use of Title 42. The ACLU filed a lawsuit so now U.S. Circuit Judges Sri Srinivasan, Robert Wilkins and Justin Walker have to determine whether to uphold a lower court order that concluded Title 42 is likely illegal. Srinivasan and Wilkins were appointed by Obama and Walker is a Trump appointee (see update below).

At Wednesday’s hearing, the panel of judges raised several questions about the stated public health rationale of the expulsions, including whether migrants are more likely to spread the coronavirus than individuals who legally cross U.S. borders.

“The statute refers to introducing a disease but COVID is unfortunately quite introduced into the United States by this point in time,” noted Wilkins, an appointee of former President Donald Trump, highlighting reports that Title 42 was invoked over the objections of some Centers for Disease Control and Prevention (CDC) public health experts.

U.S. officials relied on Trump-era CDC orders to enforce Title 42 until August 2021, when the Biden administration issued its own directive, which called for internal reviews every 60 days.

After two reviews last fall, the CDC decided to maintain the policy. The next assessment is due at the end of this month, a CDC spokesperson told CBS News on Wednesday. Despite multiple requests, the CDC has not shared written assessments for the decisions, nor underlying public health data, evidence or analysis.

Both the Trump and Biden administrations have argued that Title 42 supersedes immigration laws and allows the government to suspend asylum processing during a public health emergency.

But Srinivasan, who was appointed to the federal bench by former President Barack Obama, noted Wednesday that Congress created immigrations laws governing the processing of immigrants who could carry a communicable disease. And those laws, Srinivasan said, still allow migrants to request asylum.

Swingle, the government attorney, called Title 42 a “quite extraordinary power.”

It sounds like the Trump appointee is arguing that since the coronavirus is already widespread in the country, Title 42 may no longer really be useful.

Both the Biden administration lawyer and the critics of Title 42 agree that there is a risk in expelling migrants back to bad or dangerous conditions in other countries. It remains to be seen if the judicial panel will be swayed by that argument. We’ll see what happens when they make their ruling.

Update (Ed): Wilkins was also appointed by Obama, not Trump. We regret the error. I have corrected it in the text.