President Biden Is Obliged to End Title 42, Congress Is Obliged to Tell Him What to Do Next

Zack reports that:

The Biden administration will end the Title 42 public health order that allows border agents to immediately expel illegal border crossers, according to multiple reports.

The order was initially handed down under the Trump administration in the early days of the Covid pandemic, and renewed by the Biden administration in August 2021.

Legally, this is the correct call. Title 42 of the 1944 Public Health Services Act does not grant the president any permanent powers; rather, it is an emergency measure that permits the executive branch to take measures against the “introduction of communicable diseases” from foreign countries. Both the Trump administration and the Biden administration have proposed that the provision was activated by the existence of COVID-19, and that, when applied to contemporary immigration law, enabled the federal government to expel foreigners who cross the border illegally without processing them under regular order or considering their asylum claims. Naturally, this assertion has been contested. But we do not actually need to reach its merits in order to grasp that, without there being an underlying “communicable disease” to prevent, Title 42 cannot come into play at all. Why is President Biden rescinding the order? Because the order relied for its legitimacy upon a set of circumstances that, happily, no longer obtain in earnest.

Critics of the move are worried about the effect that losing Title 42 as a tool will have on illegal immigration. Here’s ABC News outlining the most likely outcome:

The Department of Homeland Security is bracing for as many as 18,000 migrants per day at the southern border if Title 42 is revoked, according to senior DHS officials who briefed reporters on Tuesday.

. . .

Officials said they have run through three scenarios and the highest level of migrants coming across the border per day was 18,000. They stressed it is only a prediction and they are prepared for anything. DHS has also established a joint information center with officials from across the federal government.

This worry is justified. In fact, I share it myself. But that Title 42 has proven to be a useful weapon against illegal immigration does not mean that it can be maintained outside of its legal context. It can’t. Our presidents are not dictators, and they are not allowed to scour the statute books for workarounds. If Congress wishes to give the executive branch more power to deal with illegal immigration — and it absolutely should want to do that — then it should get busy doing so.

Fox News reports that:

The House Freedom Caucus is calling on House Democrats to back a discharge petition that would force a vote on Republican-penned legislation to keep Title 42 border protections in place for the near future — just as the policy is up for renewal.

The conservative group, in a letter to Democrats, is calling for them to sign Rep. Chip Roy’s, R-Texas, discharge petition that would force a vote on Rep. Yvette Herrell’s, R-N.M. “PAUSE Act.” That bill would keep Title 42 protections in place until all COVID-19 mandates and public health emergencies are ended and until the Centers for Disease Control (CDC) lowers the traveler health risk for Canada and Mexico to Level 1.

This doesn’t make much sense. Indeed, everyone involved in this contretemps is upside-down. President Biden believes that COVID-19 is still a big problem, and yet he is on the verge of rescinding Trump’s Title 42 order on the grounds that the pandemic is functionally over, while the House Freedom Caucus opposes both “COVID-19 mandates and public health emergencies,” and yet wants Title 42 prolonged on the grounds that those mandates and emergencies still exist. I suppose that there is a little politicking here — read with a Machiavellian eye, one could conclude that the House Freedom Caucus is trying to make Biden live up to his own presumptions — but, even if there is, the approach is the wrong one if one cares at all about incentives. If the House Freedom Caucus believes that the United States should be tougher on illegal immigrants, then it should be making the case for a broader Title-42-esque law that is in no way contingent upon the existence of “COVID-19 mandates and public health emergencies,” or anything else so subjective. Congress sets immigration law in this country, and, under the U.S. Constitution, it has near plenary power to do so. If it wishes to, it can use that power for a change.

I have no interest in endorsing, justifying, or excusing President Biden’s disastrous border policy, and nor am I intent upon ignoring how utterly irresponsible it is that, having known for a while that the Title 42 kludge would eventually reach its sell-by-date, the White House seems to have developed no contingency plan. But here, as elsewhere, I must insist that if we are to have “emergency powers” in our statute books, they must be used only during emergencies. As was the case when President Biden tried illegally to extend the federal eviction moratorium, the role of Congress in fixing these deficiencies is neither to beg the executive branch to abuse or stretch its statutory authority nor to declare forever emergencies, but to pass clear and constitutionally sound laws, and to demand that the president execute them faithfully. If it is the case that we have a rolling crisis at the border — and if it is the case that the powers in Title 42 are the only thing that can meaningfully fix it — the answer is not for the legislature or the executive branch to hijack COVID-19 in perpetuity, but to tell the White House exactly what is expected of it going forward.