Title 42 may be ending and the US immigration system isn’t ready.
Editor’s note, December 20, 2022: On Monday, Supreme Court Chief Justice John Roberts issued a stay on the executive branch’s plan to end Title 42. As Roberts considers whether to refer the matter to the full court, Title 42 will remain in effect.
Title 42, the pandemic-era protocol that prevented millions of migrants from entering the US to claim asylum, is slated to end on December 21. The policy, initially enacted under former President Donald Trump, allegedly to slow the inflow of coronavirus into the US, has become a a tool for Republicans to continue imposing immigration restrictions.
Title 42 is a public health authority, not an immigration policy; however, Republican-led states have been trying to keep it in place due to its effectiveness in curbing immigration, particularly at the southern border. The end of the policy, nearly three years after it was implemented in March of 2020, will mean an influx of people that the government isn’t well-equipped to serve, as well as a reignited debate over how to deal with the nation’s broken immigration policy.
President Joe Biden’s administration tried to end the policy this past April, but a Louisiana judge ruled in May that proper administrative protocol must be followed to formally lift the program. Republican-led states again tried to intervene via the courts in an attempt to keep it in place, but a federal appeals court ruled Friday the policy must end Wednesday. There is still the possibility that the Supreme Court will intervene before then, as those GOP-led states indicated they would appeal their case to the highest court, according to the Washington Post.
Critics of the policy say that it has cost nearly 2.5 million migrants the legal right to seek asylum in the US from hardship in their home countries, including violence and natural disaster in Haiti, political repression in Cuba, and desperate economic hardship in Venezuela. Proponents — primarily Republicans, but at times also the Biden administration — have fought attempts to rescind the policy in court successfully up till now, making Title 42 an enduring part of US immigration protocol despite its supposedly contingent and specific application.
The fallout from the end of the policy will likely put a strain on resources like legal representation, courts, and housing that the US is ill-equipped to provide, although the administration’s guidance on ending Title 42 shows an infusion of money and resources into border areas. It also means that the enduring debate over US immigration policy is far from over, with lawmakers yet again at a crossroads in determining how best to revamp the system — an arduous task in a deeply polarized political environment.
The end of Title 42 will strain an already-overburdened system
Department of Homeland Security guidance for ending the policy indicates that the agency has been allocating resources and personnel to the southern border, including staff to process incoming migrants and sheltering facilities to house them. The agency also reported that it has made concerted efforts to speed up the processing time for people to either be released into the US and await their immigration hearings, or be sent back to their country of origin in an attempt to mitigate overcrowding in border communities and facilities.
Despite these efforts, the fact remains that the immigration system is overstretched and inefficient; the average wait time for immigration cases has skyrocketed from around a year in 1998 to around two and a half years in 2021, according to Syracuse University’s TRAC Immigration system. Migrants are held in substandard, unsafe conditions under the Remain in Mexico program, and both nonprofit and government resources designed to assist them after they reach the US are already overwhelmed.
Title 42 “was put in place using dubious public health rationale and has become an overt, de facto national immigration and border security strategy due to its effectiveness at keeping migrants out of the US,” as Vox’s Nicole Narea wrote in May. Republicans are fighting to keep it in place precisely for that reason; more than 2.4 million people have been expelled from the US since the policy was enacted in March 2020.
Political leaders in border states are warning of crisis and chaos when the policy does expire. El Paso Mayor Oscar Leeser, a Democrat, has issued a state of emergency in his city — a key entry point on the southern border — saying at a press conference Saturday, “We know the influx on Wednesday will be incredible. It will be huge.” According to Leeser, “hundreds and hundreds” of people are already sleeping on the street even as temperatures drop; the state of emergency will allow the city to increase shelter capacity as thousands of people are expected to come into the city daily.
Between 9,000 and 14,000 people are expected to cross the southern border each day after Title 42 ends, although numbers fluctuate due to a number of factors including changing migration patterns and multiple border crossings, CNN reported in November. Border crossings are now at around 6,000 to 7,000 each day.
California Gov. Gavin Newsom, a Democrat, warned in an interview that the influx would “break” his state’s immigration processing system and that California couldn’t fund the services provided in “a post-42 world.” Newsom called on the federal government to step up funding for immigration services and to address the country’s inadequate immigration system, while also taking aim at Florida Gov. Ron DeSantis’ sanctuary city stunts from earlier this year. DeSantis and Texas Gov. Greg Abbott, both Republicans, have transported migrants who crossed the southern border from Texas to places like Chicago and Martha’s Vineyard since September.
Title 42 has stymied critical immigration policy change
Title 42, first introduced into law through the 1944 Public Health Service Act, is still in effect, although the CDC assesses the policy in relation to the Covid-19 pandemic every two months, according to former Biden administration migration adviser Tyler Moran. The CDC indicated in April of this year that the policy was no longer necessary to prevent the spread of Covid-19; as Narea pointed out, some public health experts didn’t think it was necessary when then-President Trump enacted it in March 2020.
But public health officials weren’t the ones pushing the policy; the effort was led by Stephen Miller, a former senior adviser to Trump and the chief architect of his immigration policy, which focused on reducing overall immigration levels to the US, at times by deliberately cruel means. Even before the pandemic, Miller had been looking for opportunities to use Title 42 to expel migrants, including when there was a mumps outbreak in immigration detention and flu spread in Border Patrol stations in 2019.
Republicans have been so invested in the policy that not only did they attempt to block its dismantling multiple times, but they also floated extending Title 42 for at least another year as part of a new immigration policy framework. But that proposal is likely off the table for now, as it’s not quite clear what kinds of pathways to legal status and citizenship, as well as resources to fund needed program expansions, Republicans are willing to consider.
Biden could have called for the end of Title 42 enforcement when he first assumed office in January 2021; indeed, he rolled back a number of Trump’s harmful immigration policies his first day in office. But in January of this year, the administration defended the policy in court, saying that the continued expulsion of migrants was necessary for public safety because processing centers at the border were not equipped for isolation and quarantine of infected people.
The legacy of Title 42 will never be the number of lives from saved from Covid-19 because of the policy; that’s impossible to know, and was perhaps never an adequate justification for the policy. Instead, keeping Title 42 around for nearly three years has stalled major changes in immigration law since the number of arrivals was suppressed. It also certainly put human beings in danger, either via unsafe detention in Mexico or deportation to their home countries. But perhaps its most damning legacy will be that it denied potentially millions of people the possibility of requesting asylum and their legal right to seek safety and a new life in the US.