But some Democrats facing tough races in the fall have also embraced this rhetoric. “This preemptive repeal threatens border security at a time when the administration should be focused on strengthening it,” Sen. Maggie Hassan (D-N.H.) told the Hill newspaper.
Ordinary citizens could be forgiven for believing that Title 42 is part of our nation’s legal framework for managing immigration. After all, what most casual news consumers hear about is the policy’s outcome, the turning away of migrants before they even have a chance to apply for humanitarian protections. Nearly 2 million expulsions have occurred since Title 42 was put into place in March 2020. But the law that gave the Centers for Disease Control and Prevention the power to impose this policy is solely about protecting public health, granting the agency the authority to determine that the arrival of people or goods into the United States from places where there is significant spread of a communicable disease puts the public at risk. To use Title 42 explicitly as an end run around asylum hearings and other elements of the immigration system would be manifestly unlawful.
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The use of Title 42 was an exercise in cynicism from the beginning. A former aide to Vice President Mike Pence once called it a “Stephen Miller special,” referring to the Trump adviser and anti-immigration zealot. It’s been reported that using public health laws to restrict immigration was on a list of tools Miller had compiled by 2017 — long before the pandemic. And he looked into that option in 2018 and 2019, hoping to make the case that undocumented migrants carried disease. When the coronavirus appeared, the Trump administration seized the opportunity.
Putting forward a transparent pretext for what was always meant as an anti-immigration measure worked for as long as it did because there really has been a pandemic raging across the globe. In response to an ACLU suit challenging the policy, government lawyers have pointed to the prevalence of the virus in other countries and the medically established dangers of keeping people in congregate settings, such as detention centers. (These dangers apparently dissipate once people leave the immediate border area, given the last two administrations’ cavalier attitude toward coronavirus transmission in U.S. Immigration and Customs Enforcement detention centers in other regions.) The opponents of Title 42 have had some legal victories, including a recent ruling by the U.S. Court of Appeals for the D.C. Circuit that upheld an injunction preventing the deportation of families to countries where they would probably be persecuted or tortured (they can still be deported to other places). But judges have stopped short of halting the policy as a whole, given the pretty broad latitude the law gives to the CDC.
That legal rationale has been waning, however, as the administration has pushed to reframe the coronavirus as an endemic problem rather than an emergency. As the D.C. appellate court wrote, the order “looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.” The CDC itself, in lifting the rule, says public health concerns no longer demand it (although a broad array of public health experts never thought Title 42 did much to combat covid).
Yet the onslaught of right-wing rhetoric targeting Biden as an advocate of lax border policies has had the desired effect: It is stoking immigration panic once again. And polls are spooking moderate Democrats in vulnerable seats, who see that Republicans increasingly view immigration as a top issue. They know that GOP midterm campaign ads are already cut with placeholders for expected images of unruly scenes at the border. The political math is clear. Democratic legislators believe that ending Title 42 will do little to motivate Democratic voters but much to drive Republican ones in already unfavorable midterm races. Vulnerable Democrats are “pleading with the White House not to give Republicans an opportunity to paint Democrats as the party of open borders,” Axios reports. It doesn’t matter that ending Title 42 simply restores the pre-pandemic status quo — basically the policies of the first three years of the Trump administration. Very few people, even the demagogues, would say those policies reflected an open-border approach.
Biden is now considering a delay in the order’s termination, according to Axios, which mentions that the White House may “overrule” the CDC on the order, a mechanism that simply does not exist in the law. If Biden did that, it would be an unflattering echo of the Trump administration ignoring CDC experts and ordering them to impose the restriction in the first place. No one is denying that Title 42’s demise would present some complicated logistical challenges. (Homeland Defense Sec. Alejandro Mayorkas has announced that DHS is surging resources to the border, in anticipation of a rise in illegal crossings.) But the president can’t simply make up powers when he finds it politically expedient.
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Democrats once recognized this. When the Trump administration imposed the rule, then-Sen. Kamala D. Harris (D-Calif.) called it an unconstitutional “executive power grab” that had “no known precedent or clear legal rationale.” (Moderate Democrats, and Biden, may soon get an assist from a Trump-appointed federal judge who on Wednesday issued a temporary restraining order blocking any phasing out of Title 42 before the May 23 deadline; he has scheduled a hearing for May 13 on whether the termination itself should be blocked. Legally, of course, the idea that the CDC lacks the power to compel people to wear masks on planes — the result of another recent court decision — but must suspend the nation’s normal asylum processes indefinitely makes no sense.)
This is a moment of intense irony: Commentators and policymakers who present themselves as law-and-order types, keeping “criminals” out of the country, are, without a hint of self-awareness, calling for the government to flagrantly abuse the law at the border by twisting a public health order into a permanent immigration-control measure. Unfortunately, even well-meaning reporters and pundits too often view immigration as a policy area mainly driven by, and rightly shaped by shifting domestic political considerations. The letter of the law, and the humanitarian protection the law provides absent a true public health emergency, are afterthoughts.