Biden Admin's Decision to End Use of Title 42 at the Southern Border Draws Bipartisan Criticism

What’s the story?

• The Biden administration recently announced that it will end the use of Title 42 at the Southern border on May 23rd, which will end the ability of Customs and Border Protection (CBP) to quickly process and expel unauthorized immigrants who have been detained trying to enter the country illegally. 
• The move comes amid a historic surge of illegal immigration at the Southern border, where apprehensions are on pace to double the all-time record set in fiscal year 2021. Officials from the Dept. of Homeland Security (DHS) have warned that as many as 18,000 apprehensions at the border daily if Title 42 is lifted ― which would be a huge increase compared to recent months as February averaged over 5,800 daily apprehensions.
• Biden’s announcement has sparked a bipartisan push to block the administration’s change from taking effect, including an effort to hold an amendment vote on the issue prior to the passage of a $10 billion COVID-19 relief bill. 

What is Title 42?

• Title 42 was originally enacted under the Public Health Service Act in 1944 to give the federal government the authority to quarantine people entering the U.S. to prevent the spread of communicable diseases into the country. It gives the government “the power to prohibit, in whole or in part, the introduction of persons and property” from any foreign country where “any communicable disease” could threaten domestic public health. 
• The Trump administration began to use Title 42 amid the onset of the COVID-19 pandemic in March 2020 to allow Customs and Border Protection (CBP) to bar non-citizens who enter the U.S. illegally or are otherwise inadmissible. It was extended in October 2020, then the Biden administration revised and extended its use in August 2021.
• In practice, this means that CBP quickly processes unauthorized immigrants apprehended at the Southern border without an asylum screening then expels them back to Mexico through the nearest point of entry. Title 42 doesn’t apply to certain foreign nationals and family groups whom Mexico declines to accept upon expulsion, so those groups are either held in CBP custody or are released pending removal proceedings in court. Similarly, unaccompanied children aren’t processed under Title 42 and are held in custody or released to family members in the country.

What they’re saying

• White House Press Secretary Jen Psaki sought to downplay DHS projections that up to 18,000 apprehensions could occur daily if Title 42 is lifted and argued at a press briefing this week that immigration enforcement agencies would be able to put unauthorized immigrants through court proceedings quickly while they’re released under the Alternatives to Detention program:

“Well, “up to.” And we’ll see what happens. And, obviously, we’re taking steps to convey that this is not the time to come. Individuals who come to the border ― this is what would happen: CBP and ICE would work together to ensure that anyone who enters the country without authorization is put into immigration proceedings as quickly as possible. CBP has been working with ICE to ensure individuals awaiting processing in the interior of the country would be monitored under the Alternatives to Detention program. We know that, to date, nearly 80% of non-citizens waiting in the interior under prosecutorial discretion have either received a notice to appear or are still within their window to report. That is what would happen” 

• Sens. James Lankford (R-OK) and Kyrsten Sinema (D-AZ) are leading a bipartisan effort in the Senate to block the administration from ending the use of Title 42 at the border along with Sens. John Cornyn (R-TX), Shelley Moore Capito (R-WV), Maggie Hassan (D-NH), Mark Kelly (D-AZ), Joe Manchin (D-WV), Rob Portman (R-OH), Jon Tester (D-MT), John Thune (R-SD), and Thom Tillis (R-NC). Lankford explained:

“The Biden Administration is declaring the pandemic over on our southern border but still active on our healthcare workers, military, and travelers. Department of Homeland Security intel projections show that potentially a million people will illegally cross the moment Title 42 is lifted. But instead of a workable replacement plan, the only plan the Biden Administration seems to have is moving people faster into the interior of the country. They cannot have it both ways. If they think it’s safe enough to lift Title 42 at the border, then it must be safe enough to lift the COVID-19 state of emergency on the whole country. But when we drop Title 42 at the border, DHS must also implement a workable solution to expel migrants.”

• Sinema added:

“Arizona communities bear the brunt of the federal government’s failure at our border, so we’re stepping in and protecting border communities by ensuring the Administration works hand-in-hand with local leaders, law enforcement, and nonprofits to put a comprehensive, workable plan in place before lifting Title 42. I’ll continue pushing for transparency and accountability from the Administration to help secure the border, keep Arizona communities safe, and ensure migrants are treated fairly and humanely.”

• In the House, Reps. Jared Golden (D-ME) and Tony Gonzales (R-TX) introduced a bipartisan companion bill backed by a number of other centrists, including Reps. Don Bacon (R-NE), Brian Fitzpatrick (R-PA), Tom O’Halleran (D-AZ), Stephanie Murphy (D-FL), Maria Elvira Salazar (R-FL), and Greg Stanton (D-AZ).

— Eric Revell

(Photo Credit: CBP Office of Public Affairs photo by Kris Grogan via Flickr / Public Domain)