Biden Can’t Axe Title 42 Border Policy–For Now

A federal judge just blocked the Biden administration from ending Title 42, a measure used to prevent migrants from entering the U.S. illegally at our southern border due to health concerns. This is great news.

Title 42 is an effective tool. It has turned away 1.8 million migrants who sought to bypass our legal immigration progress. The ending of the pandemic health measure would have unleashed a tidal wave of illegal border crossings that our border security apparatus simply could not manage.

Illegal immigration has reached historic levels causing public health, public safety, national security, and even public funding headaches. Finally, someone is standing up.

Still, Title 42 is an emergency measure. Congress should not be off the hook for passing legislation that strengthens border security and fixes our immigration system.

What happened

Attorneys general from 24 states sued to block the administration from ending Title 42 on May 23. The Centers for Disease Control (CDC) argued that the policy was no longer needed because of the availability of vaccines and therapeutics. Does that mean they were testing migrants for Covid and providing vaccines or care if they tested positive? Not likely.

Late last week, Louisiana District Judge Robert Summerhays ruled in their favor finding that the Biden administration violated administrative law and, most notably, that lifting the measure would cause “irreparable harm” for states due to increased spending on health care, law enforcement, education, and other services for migrants.

For states absorbing the surge, it “will increase their costs for healthcare reimbursements and education services.” 

Opponents of Title 42 have blasted this ruling. They anticipated President Biden making good on a campaign promise to end the measure. 

Tami Goodlette, the director of litigation at the Texas-based Refugee and Immigrant Center for Education and Legal Services, claimed that the measure was “shrouded in racism.” According to her, the state attorneys general that sued to keep Title 42 in place are “right-wing extremists.”

Although this decision means that the status quo remains for the foreseeable future and that expulsions can continue, it does faces legal challenges.

Title 42 is popular

Despite how activists paint it, Title 42 is supported by most Americans–not just “right-wing extremists.”

According to a new POLITICO-Harvard survey, 55 percent of American adults oppose ending the use of the order, compared to 45 percent who think the order should end.

Not surprisingly, support for keeping Title 42 in place falls along partisan lines: 81 percent of Republicans oppose ending Title 42, compared to just 36 percent of Democrats. 

However, some Democratic lawmakers, especially those from border states have clamored in recent months for the Biden administration to keep Title 42 in place. Their constituents bear the consequences of illegal immigration.

We need enforcement, not loopholes

As helpful as Title 42 has been, inconsistent enforcement and exemptions weaken its effectiveness. 

The Washington Post reports that Title 42 was applied to about 80 percent of all border crossers under the Trump administration, but that share has fallen to roughly 55 percent under the Biden administration. Even then, the administration is creating loopholes in our immigration policies for illegal immigrants to enter.

According to former acting Department of Homeland Security (DHS) Secretary Chad Wolf under President Trump, the Biden administration has created too many exemptions.

They insist it’s a public health authority, not an immigration enforcement tool. But if you exempt minors and family groups and Ukrainians and others, you are deciding who comes in and who doesn’t — and that’s an immigration policy.

DHS has also been lax in addressing repeat offenders. People caught crossing the border again and again should face criminal charges and jail time before deportation. However, because penalties have not been provided, migrants are incentivized to try again to gain entrance. 

Now, the Biden administration plans to crack down on repeat crossers by re-implementing criminal penalities. Current DHS Secretary Alejandro Mayorkas believes that enforcement will reduce the number of people attempting to cross the border over time. Shouldn’t he have prioritized enforcement long ago? Then, perhaps we wouldn’t have near-record high encounters at our border each month.

Bottom Line

When fully enforced, Title 42 has proven to be an effective and necessary tool to stem the flow of illegal immigration. Keeping it in place is a win for law-abiding citizens and residents in every state. However, Title 42 does not replace Congress’s role in passing needed immigration reform and border security.