Close the Border over the National-Security Crisis, Not over a Phony Covid Emergency

I appreciate the noble intentions of stalwart Republicans led by Senator Mike Lee (Utah) and my friend, Congressman Chip Roy (Texas), not to mention those in the state governments who’ve hauled the Biden administration into the Supreme Court over the potentially existential crisis on the border, which I detailed here yesterday. We are being undone by a president who is derelict in his duties to protect our national security and uphold the law, and by his party, which has signed on to — or is at least too intimidated to resist — the radical, anti-American Left’s position that the United States should not have a border.

I might very well do the same thing if I were in the position of Senator Lee, Congressman Roy, and other Republicans whose states are bearing the security and economic ravages of (a) Biden’s impeachable conduct, (b) the progressive “transformational change” agenda, and (c) Republican leadership’s preemptive surrender on the scandalous $1.7 trillion omnibus. I might just shrug my shoulders and conclude that Title 42 may be a ridiculous response to the crisis, but it’s the only one ready to hand, so we have to run with it.

But that would not change the reality that Title 42 is a ridiculous response.

Moreover, it would not prevent the disastrous unintended consequences that would flow from relying on Title 42 to halt — or, more accurately, merely delay — the hordes of illegal aliens formed up to storm the border the moment the provision is lifted.

President Biden or Congress should instead use their preexisting authority to close the border, treating the situation as the national-security crisis that it is.

Title 42 is a pretext, not a policy. It is shorthand for a provision in federal law (specifically, section 265 of Title 42, U.S. Code) that enables the Centers for Disease Control and Prevention (CDC) to close the border — even to the rare alien who might have a legitimate asylum claim — if the CDC determines that

there is serious danger of the introduction of such [communicable] disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health.

[If you follow the link, you’ll notice that Section 265 originally left this determination to the surgeon general. Responsibility was transferred to the CDC in a 1966 reorganization of public-health agencies.]

Obviously, you can see the problem. The public-health emergency that led to reliance on Title 42 (and it never should have come to that, but that’s a story for another day) was the Covid pandemic, beginning in March 2020, when the Trump-era CDC invoked section 265. Covid is no longer a public-health emergency. Although the Biden administration, as is its wont, has violated administrative law in the way it tried to rescind Title 42, it is simply a fact that the rationale for the rescission was correct: There is no longer a public-health crisis that can sustain the Title 42 determination. It should, therefore, be terminated. (The Supreme Court would be justified in keeping Title 42 in place until the Biden administration rectifies its violation of administrative law, but again, I don’t want to get sidetracked — I’ll explain that in a separate column.)

Presumably, you can also see the unintended consequence — at least the one we can already anticipate; there are undoubtedly other ones.

Republicans have rightly taken the position that Biden had no authority to cancel hundreds of billions of dollars in student-loan debt on the pretext that the Covid pandemic is a national emergency that triggers statutory debt-cancellation authority. Constitutional conservatives have appropriately inveighed against Biden’s deceitful effort to have it both ways on the pandemic — claiming both that it is over and that its supposed continuation vests him with emergency powers (see, e.g., here and here). Some of us have even urged the impeachment of Secretary of Education Miguel Cardona, the bureaucratic point-man of the fiasco. (My own view is: That’s a start.) Right now, some of the same states fighting to keep Title 42 in place on the false Covid premise are fighting Biden in the Supreme Court, poised to argue in February that his student-loan cancellation is an unconstitutional usurpation of power rationalized by a false Covid premise.

That is to say, by pushing Title 42 in response to the border crisis, Republicans are, in essence, writing the Biden Justice Department’s brief in the student-loan case. Sure, Biden does not actually believe there is a health emergency, he was just looking for a fig leaf to cover his progressive policy preference to socialize student-loan debt. But Republicans don’t believe there is a health emergency, either, yet they are willing to pretend there is one as cover for their national-security policy preference that the United States of America should have a southern border that is enforced.

This is all so unnecessary.

Not only is there no factual basis, there is no need for the political branches of the federal government to abdicate their responsibility to safeguard the homeland, as if it were the CDC’s job. Not only does President Biden have inherent constitutional authority to close the border based on an already ongoing national-security emergency, he has explicit statutory authority. As we repeatedly observed during the Trump years, Section 1182(f) of federal immigration law provides:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” [emphasis added].

It could not be more patent that (1) the entry of roughly 6 million illegal aliens into the United States in Biden’s first two years in office — who are expressly required to be detained under federal law (see section 1225(b)(1)(B)(iii)(IV)) — has been detrimental to the interests of the United States; and (2) the storming of the border by hundreds of thousands more illegal aliens as soon as Title 42 is lifted would be a national-security catastrophe. It is also obvious that Congress, which is constitutionally responsible to set the legal conditions for entry by aliens into the United States, may itself make the findings it has statutorily delegated to the president. That is, if Biden won’t close the border, Congress must.

Why press a Title 42 amendment to the omnibus under the false premise that we have a public-health emergency? Why not an amendment that accomplishes the same objective on firm legal and factual footing?

Congress could direct that the president close the border until (a) the roughly 6 million illegal aliens who have entered the United States since Biden took office have been accounted for and had their cases adjudicated, and (b) a plan is in place to permit entry into the country by only the number of aliens for whom there is detention space to humanely keep them during litigation over any claims of asylum, fear of persecution, or other entitlement to be legally present in our country.

As noted above, the omnibus bill is a scandal. I would, of course, prefer that the government not do midnight-at-Christmas “must pass” budget deals. We should be grappling with the border crisis independently. But that is not the world we are in. The perceived need to enact a budget is the only leverage Lee, Roy, and other Republicans have to force salutary border legislation. Fine, then let’s do something that’s legal and lasting, not something that fraudulently relies on a non-existent health crisis, and that will undermine our opposition to Biden’s lawless student-loan problem. And if Democrats and surrender-first Republicans won’t go along, then don’t give them their omnibus.

Don’t close the border because of Covid. Close the border because the national security of the United States demands it.