Reprieve at the Border?
Terry H. Schwadron
May 25, 2022
We’ve passed the target date for the Southern Border to be overwhelmed by a massive rush by immigrants to enter the country.
On Monday, the Biden administration had been ready to end Title 42, the obscurely named policy that his predecessor had devised as a public health excuse to keep the border closed to migrants crossing illegally, legal asylum applicants and to deport hundreds of thousands of immigrants inside the United States.
Last Friday, a federal judge in Louisiana said Biden could not legally lift the rule. As a result, we have an immigration policy based on a single judge’s opinion not about immigration or covid or even the power of the Centers for Disease Control to set a regulation about covid. Instead, this decision turned on whether the government has asked for sufficient comment from state officials and others before it would take effect. Various states had argued that border states heeded to be heard on new social service costs they would face from a surge in migration.
In most readings, Title 42 was the wrong tool for the job. Using covid as the measure for an entire national policy clearly was a guise for keeping migrants in Mexico, policies since also upheld in the courts.
Besides, the path of covid itself is shaky and continuing, Americans continue to be infected plenty without help from immigrants, legal or not, and the drama over how to enforce what would happen after blunting the rule.
What’s not clear is whether the political blast around Title 42 is worth Biden’s effort to appeal this decision. Previous rulings by appeals courts up to the Supreme Court have sided generally with limiting the power of federal agencies to order mandates of any sort.
By voiding the anticipated response to lifting Title 42 an immediate skyrocketing of migrant requests to enter, for the moment, Biden may have lost legally but gained politically.
Effectiveness?
For months, Biden had wanted to end the policy, basically because it was a sham effort to block the legal asylum process. Republicans and Democrats both hit back on whether there was a sufficient plan if he did so. It’s been an obvious political campaigning target.
As things stand, migrants since March 2020, remain shut out, mostly staying in squalor across the border.
Title 42 was a previously little-known section of U.S. health law allowing the government to temporarily block noncitizens from entering the US “in the interest of public health.” Trump’s CDC agreed, but the approach had come from the pen of Trump immigration adviser Stephen Miller, who searched for ways to lessen immigration. Under Title 42, migrants are returned to Mexico within hours without filing for appeals or asylum. Since its start, 1.9 million have been deported.
Meanwhile, a million Americans have died from covid, even as we fight about wearing masks or adhering to public health mandates. Let’s just assert that preventive public health has not been a primary campaign for Trump, Republicans or the border states generally. And Democrat Biden waited more than a year for covid concerns to wane before attempting to tee up elimination of Title 42.
Within the last couple of months, CDC said Title 42 was no longer necessary from a public health safety vantage point. Besides, border officials were vaccinating migrants who did end up here. Mexico is ill-equipped to vaccinate the deportees.
If it wasn’t an effective shield for covid, did it accomplish a shutdown of immigration attempts? Before Title 42, migrants might have been subject to swift deportation proceedings and criminal prosecution, which would have made it more difficult for them to get legal status in the U.S. Now they’re simply returned to Mexico and undeterred from trying to cross again. Breitbart News reported nearly 4,000 arrests of migrants crossing the border in one area of Texas Sunday night, as the date for a supposed end of Title 42 neared.
There were nearly twice as many border apprehensions in fiscal year 2021 as in fiscal year 2019. Before covid, 7 percent of those arrested at the border had crossed the border more than once; in 2022, it’s 27 percent, and among single adult migrants from El Salvador, Guatemala, and Honduras specifically, it’s 49 percent, Vox reports.
Critics see the same — adding, of course, that it is all Joe Biden’s fault. Sen. Roger Marshall (R-Kan.), for example, described the border as a “war zone” to Breitbart News, arguing that the border needs more enforcement on the scale of aid to Ukraine, which he voted against, citing the rise in dangerous drug seizures and chaos among migrants.
Now What?
Were we to have a functioning Congress and government, you’d think that we would be hammering out a more comprehensive immigration plan.
We have a dysfunctional Congress and a national politic that is split about immigration. We have rampant conspiracy theories abounding about replacement theories that would replace white, Christian America with nonwhite immigrants, all of whom supposedly would eventually vote for Democrats.
So, instead, be prepared to see more of the same photos of individually desperate migrants risking live to try to enter the United States illegally to start a new life. Be prepared for anti-immigration candidates to want the status quo to continue to be able to harvest those pictures for political gain.
It is so much easier than figuring out a system that could work.
Had the revocation of Title 42 gone ahead, it might have served as a catalyst for a crash program on how to process immigrants, how to adjust asylum requests from anywhere but Ukraine or Afghanistan, and what to do about the now-adult Dreamer population and 11 million immigrants reportedly living in this country without proper documentation.
The impact of an immediate sharp increase in immigration numbers would have required coordinated safety and law enforcement issues, would have challenged our sense of American values, and would have required public response in ways other than sending more state troopers or other federalized forces to the border as a defense.
We’ll never know if Homeland Security’s planning was real or sufficient, or whether recalcitrant border states would have run alternative plans to undercut the increase.
According to an April Morning Consult/Politico poll, 55 percent of voters somewhat or strongly oppose the decision to end the policy, including 88 percent of Republicans and 27 percent of Democrats.
There’s no poll, but I’d be surprised if 100 percent of Americans don’t think there is a better way to address this.
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