Troubling Title 42
Troubling Title 42
It was never about the pandemic, it was always about keeping immigrants out.
Title 42 is dominating the news.
It is set to expire on Thursday, May 11th.
Depending on the sound bytes you’ve heard or the tweets you’ve seen, you may believe that when it expires America will be overrun by illegal immigrants.
That isn’t the least bit accurate, and Title 42 being active wasn’t some form of magical barrier keeping migrants from crossing the border, but it did contribute to the immigration problems America is now facing.
What is Title 42?
In 1944 the US codified the Public Health Services Law as Title 42. Its purpose was exactly as it sounds, to define the government provisions for public health services. This legislation includes many topics such as family planning services, cancer treatment research, newborn screenings, even the Affordable Care Act is now a part of Title 42.
Buried within these laws is a provision that grants the federal government quarantine authority to be used to prevent the introduction, transmission and spread of communicable diseases from foreign countries into the United States.
Stephen Miller, then a chief adviser on immigration to President Trump, had been looking for a way to use the quarantine aspect of Title 42 to keep immigrants out of the country.
In 2018 Miller began looking for evidence that any of the groups of migrants heading to our border carried diseases. When a handful of migrants got sick in federal custody, Miller pushed to have Title 42 enacted to shut down immigration, but didn’t yet have enough support for the measure.
Miller found another opportunity in 2019 when mumps broke out in six detention facilities, and later when Border Patrol developed cases of the flu. Again, there wasn’t enough support for the obscure quarantine protocol.
Miller’s goal all along was to find any reason to bypass immigration law and shut down migrants coming to the United States. In fact, within the first six months of the administration, Miller had drafted 50 different ideas on how to clamp down on immigration.
Then came Covid in 2020. A new, novel disease that spread across the United States and the world. Miller now had a disease large enough to push his idea through.
Over 1300 medical experts, including senior members of the CDC and epidemiologists have denounced the junk science used as a basis for enacting Title 42 and asked for the measure to be repealed as soon as Biden took office.
Biden had vowed to end Title 42 but changed his tune once his administration began. The migrants crossing our border was a headline grabbing topic for Republicans and Biden wanted to work towards a smooth midterm election that was focused on a return to normalcy.
Ironically enough, it is Republicans in Congress who ended Title 42 by passing legislation that declared the Covid health emergency over. Title 42 no longer applies due to being directly tied to that health emergency.
An additional irony here is that Republicans were also the ones who insisted schools and offices never needed to be closed, vaccines weren’t needed, and neither were masks. Yet, we needed to keep immigrants out to protect our country from that same disease.
Title 42 was never about controlling the pandemic, it was simply about keeping out immigrants and it was a plan hatched long before the pandemic began.
Now, the fear being pushed by Republicans is that with migrants once again able to request asylum there will be an increase in the number of immigrants coming across the border. However, it seems that what has actually happened is that the existence of Title 42 has created two issues that will now need to unwind once the emergency ends.
The first is that the rapid expulsion of immigrants under Title 42 guidelines meant that migrants would get deported and immediately try to cross again. This has inflated the number of border crossings, a number that the GOP has latched onto since Biden took office.
The second issue is that there is a backlog of migrants that have been waiting for Title 42 to expire in order to make their case for staying in the United States. Those are the big groups of migrants shown on the news the last couple of days.
Title 42 was originally intended to be revoked in April of last year.
The CDC filed the paperwork citing vaccines as well as advances in both understanding and treatment of the disease. Republicans brought a case forward in Louisiana claiming that ending Title 42 would saddle several states with increased costs due to managing the immigrants.
The judge sided with those states and therefore kept Title 42 in place even though that lawsuit justification has nothing to do with the communicable disease reasoning behind Title 42 expulsions.
A second case was later brought forward in DC and went all the way to the Supreme Court who ruled 5-4 on preventing the Biden administration from winding down Title 42. Biden appeared relieved with this decision as his administration wasn’t prepared to deal with the fallout of ending the measure.
Biden had briefly discussed new immigration legislation, mainly going back to the Trump style program of Stay in Mexico where an immigrant can’t ask for asylum if they have passed through another country before getting to our border. His administration never prepared legislation to push that measure through.
Republicans are working on similar legislation with extra provisions. HR 2 is expected to be voted on Thursday, as they cannot pass a new law until Title 42 has expired. HR 2 would enact the Stay in Mexico rule, restart border wall construction, increase funding for both border patrol agents and funding for new technology to monitor the border.
In the end it looks like the Republican strategy worked. They gained temporary measures for reducing immigration and are now using the fear of those measures expiring to push forward new, stronger immigration laws.
Biden hasn’t spoken out against these measures and would likely sign any immigration bill that ends up on his desk.
Overall, Biden’s biggest focus is keeping Trump out of office and keeping MAGA from gaining power. Immigration is one of the biggest Republican talking points. A solid go to any time the GOP needs to change the headlines. If Biden lets the GOP pass a bill now, then Republicans don’t have immigration as a core issue to rely on next year once the election heats up.
Setting aside the political game theory at hand, Title 42 should never have been used to prevent migrants from seeking asylum in the US. Scientists didn’t agree with the conditions on why it was being used, and America has an obligation through international law to allow anyone who crosses our border to make their case for asylum.
In the end, there will be a short term surge from migrants when Title 42 ends due to the backlog of asylum seeking immigrants waiting to make their case. Despite all the doomsday prophesying, after that backlog filters through you won’t hear much about the border, and American life will continue on as it always has.
https://www.nytimes.com/2020/05/03/us/coronavirus-immigration-stephen-miller-public-health.html