Biden won't have Title 42 to mitigate the consequences of his unwillingness to protect the border.
The Centers for Disease Control and Prevention shouldn’t be a border-control agency.
Yet its public-health powers have become a crucial crutch for enforcement at the southern border. The Biden administration is still using the CDC’s so-called Title 42 order — pursuant to a portion of the U.S code dealing with health — to exclude migrants from the United States. The order was justified at the outset of the pandemic, when we were incapable of instituting at the border the sort of measures — social distancing and the like — recommended for minimizing the spread of Covid.
As the pandemic has waned, the public-health rationale has faded and Title 42 has become simply a way to stanch the flow of migrants at the border when Biden has destroyed or degraded all the other Trump-era border controls.
The administration has actually wanted to terminate Title 42 but got blocked by one judge. Now, another judge says the order has to go, although he is giving the Biden administration several weeks to figure out how it wants to handle a post–Title 42 border. (That important policy questions are now, in effect, decided not so much by Congress but by judges squinting at the Administrative Procedure Act is its own problem.)
Everyone agrees that lifting Title 42 will make a bad situation at the border worse. The Biden administration has made less use of the order than the Trump administration. Still, it is almost all it has in terms of ready enforcement tools.
In October, there were more than 200,000 apprehensions of migrants at the border, the highest number for any October on record. According to Art Arthur of the Center for Immigration Studies, the number was higher than the total for all Octobers between the years 2016 and 2020, and we had what was then considered a border crisis in 2019. Another estimated 64,000 migrants weren’t apprehended and got away in October.
Overall, in fiscal year 2022, more than 2.2 million migrants were apprehended. The Biden administration is simply releasing many of these migrants into the country. It has effectively ended Remain in Mexico, the key Trump policy innovation that had asylum-seekers stay in Mexico while making their claims in the U.S. If the claims proved valid, they could enter the U.S. Otherwise, they were turned away. This plugged the easily exploited hole in the system of bogus asylum-seekers gaining entry into the U.S. based on their claims and never leaving again even if those claims were rejected.
Estimates are that up to 18,000 migrants a day could begin arriving at the border if Title 42 is lifted, a shocking number that would overwhelm a system that is already over-topped by the current flow. NPR talked to a journalist the other day who reported of a migrant camp just on the other side of the Rio Grande: “Everyone was aware that Title 42 is ending soon.” They will act accordingly.
The proper response to all of this is simple. The Biden administration should revive Remain in Mexico (which would require renewed cooperation from the Mexican government) and all the other Trump policies it inherited that emphasized returning migrants home as soon as possible. Meanwhile, Congress should untangle the legal and policy morass that has made it so hard for us to embrace a commonsense approach of excluding illegal migrants.
Of course, none of this is likely to happen. The Biden administration is showing a little willingness now to embrace small-scale or symbolic changes at the border, most notably in cashiering the head of U.S. Customs and Border Protection. But the administration doesn’t really believe in preventing bogus asylum-seekers from entering the United States, or in deporting illegal immigrants once they are here. It is hostile to immigration enforcement as such. The results have been plain to see and could be about to get much worse.