Title 42 debate drags on

A caravan of migrants departed from Tapachula—a city on the Mexico-Guatemala border—on Monday on its way toward the United States. The group is expected to swell to up to 15,000 people. Members are calling on the Biden administration to repeal Title 42, the public health order that allows immigration officials to immediately expel asylum-seekers and other undocumented migrants, when they reach the border.

“He promised the Haitian community he will help them,” one migrant told Fox News, “He will recall Title 42.”

But that’s unlikely to happen any time soon.

Twenty-four states led by Arizona successfully challenged the Biden administration’s attempt last month to end the pandemic use of Title 42. U.S. District Judge Robert Summerhays wrote in his decision that lifting the pandemic health order would cause “irreparable harm” by forcing states to provide healthcare, law enforcement, education, and other services for an influx of migrants. It’s the latest in a series of court decisions about Title 42 and other immigration policies that have left experts concerned about a growing trend of courtroom making and changing of immigration law.

Despite pledging to end the public health order much earlier, the Biden administration continued using it to control rising immigration. Officials have carried out over 1.8 million expulsions since President Donald Trump invoked the World War II–era health order at the beginning of the pandemic.

In April, about 234,000 individuals arrived at the southern border—the highest one-month total in 22 years. Migrant encounters have climbed sharply throughout 2021 and 2022. Ukrainians have contributed to the record numbers since the Russian invasion. More than half of the migrants come from Guatemala, Honduras, Mexico, and El Salvador.

Advocates argue Title 42 has been applied unevenly. (A U.S. Customs and Border Protection memo encouraged border officials to exempt Ukrainians.) Others argue the policy incentivizes repeat crossings since migrants are free to try again without facing legal consequences. Experts have warned that lifting Title 42 could spark an even greater migration surge. Department of Homeland Security officials told ABC News they are preparing for as many as 18,000 migrants per day.

A group of Democratic senators joined Republicans in supporting a measure that would require the administration to notify Congress and wait at least 60 days before ending the policy. Democratic Rep. Henry Cuellar from the border district of Laredo, Texas, spoke against ending the policy without putting more officers and resources in place. “Who’s listening to the border communities, the sheriffs, the landowners, and the rest of the people who live on the border?” he asked during an interview with Fox News Sunday.

On April 1, the Biden administration announced that the Centers for Disease Control and Prevention would terminate the order on May 23. But Judge Summerhays blocked the move, finding the CDC violated administrative procedure by not posting public notice or giving the public an opportunity to comment on the decision.

Recent presidential administrations have often turned to executive action to bypass congressional inaction. But executive actions are more vulnerable to legal challenges, noted Jessica Bolter, an associate policy analyst with the Migration Policy Institute. “It lends to a lot of confusion and not a lot of progress,” she said. “Immigration policy shifts at the drop of a hat.”

Danilo Zak, a policy and advocacy manager for the National Immigration Forum, is similarly concerned about the increasingly outsized role judges play in immigration decisions.

Instead of leaving immigration decisions to the courts, he said the same Republicans and moderate Democrats who joined forces to oppose ending Title 42 should come together to craft an orderly process for asylum-seekers to make their claims at ports of entry, and to relieve pressure on Border Patrol by adding more non–law enforcement personnel at the border.

The legal turmoil surrounding Title 42 parallels the journey of the Migrant Protection Protocols through the courts. The 2019 Trump administration policy known as “Remain in Mexico” gave immigration officials authority to send asylum-seekers back to Mexico while they waited for their court hearings. Biden terminated that policy in June 2021, but in August 2021 a federal judge ordered the administration to restart the program. The 5th U.S. Circuit Court of Appeals upheld the ruling, and now the Supreme Court is hearing the case.

“We are basically in what I would call litigation pingpong,” said Theresa Cardinal Brown, managing director of immigration and cross-border policy with the Bipartisan Policy Center. “No one really knows what policy will be in place tomorrow.” This makes it difficult for everyone involved, and it benefits smugglers, who tell potential migrants not to worry since the policy will probably change.

Cardinal Brown said the debate over Title 42 is obscuring the underlying need to rethink border policies. She said lawmakers should spend more time shaping Title 42’s replacement: “It’s going to have to come to an end eventually.”

The Biden administration has appealed the District Court’s Title 42 ruling to the 5th Circuit. Despite pressure from immigration advocates, it has not requested an emergency stay on the order to continue the policy while it makes its way through the courts. Appealing the ruling to the 5th Circuit (a court known for upholding Trump-era immigration policies) could take even longer than completing the formal notice and comment period requested by Judge Summerhays, Zak said. 

Court delays mean the policy will most likely remain in place till 2023. Lee Gelernt, deputy director of the American Liberties Union’s immigrants’ rights project, told The Hill: “If the administration cannot obtain a stay then doing notice and comment quickly would be more immediate than allowing an appeal to go forward over months and possibly a year or more.”