The Right Is Melting Down at the Thought Title 42 Might End

It may seem strange that the notoriously anti-immigrant Republican governor of Texas, Greg Abbott, has been using Texas taxpayers’ money to charter buses to shuttle migrants to Washington, D.C., free of charge. This publicity stunt — which has been panned from both Abbott’s right and from his left — was intended as a protest against the Biden administration’s announcement to end the so-called Title 42 order, a provision which allows the Centers for Disease Control and Prevention (CDC) to mandate migration restrictions if ​“there is serious danger of the introduction of [a communicable] disease.” Title 42 gave Border Patrol the authority to rapidly expel people who cross the border (or who try to present themselves at ports of entry) without any of the legal processes these migrants would normally be entitled to — such as the ability to request refugee protection, a right supposedly guaranteed under international and domestic law.

The Department of Homeland Security announced in April that it would stop using these Title 42 protocols in May, and instead resume processing migrants with its pre-pandemic procedures.

Abbott’s bus scheme was evidently intended to dramatically bring the ​“border crisis” to the Capitol. Of course, given that the federal government and the state of Texas regularly make a habit of throwing migrants into cells for months at a time, it actually seems counterintuitively nice to launch a voluntary program to bus migrants into a part of the United States with comparatively better immigration courts. Texas (and other conservative states) have, however, also challenged the end of Title 42 in less symbolic ways, bringing multiple lawsuits to argue that the Biden administration simply doesn’t have the authority to end it right now.

On April 27, a judge in one of these lawsuits issued a temporary restraining order forbidding the Biden administration from even beginning to wind down its use of Title 42 expulsions, and the usual cast of ​“moderate” Democrats, including Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.), have joined with Republicans to propose legislation to dictate the terms under which the president might end Title 42, baking these demands in as amendments to a larger bill about Covid relief and aid to Ukraine.

There are a few important things to understand about Title 42 and the opposition to its wind-down. First, the use of Title 42 has never had much to do with public health. When the Trump administration first urged the CDC to allow the mass expulsions of migrants under Title 42, a top CDC official refused on the grounds that there was no evidence it would protect the public or slow the spread of Covid. It was only after Trump administration officials strong-armed the director of the CDC that the order was obediently issued.

Public health experts from a range of institutions have, meanwhile, regularly attacked the CDC’s reasoning as scientifically flawed. The CDC itself has conducted zero research into the relationship between Title 42 and its effect on Covid rates. As one unnamed former official, who spoke with The New Yorker, acknowledged, “[T]he official reasoning for Title 42 may be public health,” but the real reason the Biden administration found it ​“difficult” to abandon is because ​“as a migration tool it allows for quick and flexible expulsions.”

In short: Title 42 has always primarily been a tool to militarize the border, not to protect public health. And it is for these purposes of border militarization, not public health, that Title 42 supporters want it extended.

Some states, arguing they face ​“irreparable” harm should Title 42 procedures end, almost exclusively point to the cost of K-12 education for immigrant children and emergency healthcare for immigrants in danger of dying, with similar arguments being made in other lawsuits against the Biden administration. But migrants have virtually no access to federal welfare benefits and, in conservative states, virtually no access to state benefits either. And the public health argument is especially flimsy here, given that other domestic anti-Covid measures have been wound down with little opposition from conservative lawmakers.

Second, it’s important to realize that, when anti-immigrant state governments conjure up fears about ​“once-in-a-republic” levels of border crossings, they are not being accurate with their numbers. It’s true that a larger-than-average number of immigrants have appeared at the border in 2021 – 2022 (which makes sense given how long the border was sealed off) — but the number of recorded border encounters has also been artificially inflated by individuals crossing multiple times, in attempts to evade Title 42 expulsions.

It’s also true that the most recent time the numbers were this high was 1986—but Border Patrol had about a seventh of its current manpower in the 1980s (and many fewer technological aids to patrol the border’s 2,000 miles), so the actual number of border-crossers, proportionally speaking, was almost certainly higher than it is today.

Regardless, 2010 – 2018 saw an unusually low number of border-crossers compared with the preceding decades, while the rhetoric around ​“invasions” and ​“surges” became increasingly hysterical — a clear indicator that this ​“crisis” is based on political psychology, not on-the-ground reality.

Finally, and importantly — and I write this with regret — the end of Title 42 protocols does not mean the Biden administration is in any way proposing to implement ​“open borders.” As a policy, Title 42 gave the government a blanket excuse to expel anyone from the border without legal proceedings. After Title 42, the Biden administration will simply use another super-fast deportation procedure, known as ​“expedited removal,” with the hope of continuing to deport people directly from the border. Meanwhile, migrants who are released into the United States will enter into deportation proceedings in whichever immigration court is nearest to their destination, and any failure to attend these proceedings (and raise an effective asylum claim or other defense) will result in a standing deportation order that Homeland Security can execute at its leisure.

What’s more, the Biden administration has announced that any end to Title 42 would be accompanied by a significant increase in border enforcement, the administration’s attempt to stave off new litigation challenges and political criticism.

In a separate immigration case — about the Biden administration’s right to end the ​“Remain in Mexico” program, another bad Trump-era immigration policy — the Supreme Court has signaled it might agree with the administration that these kinds of policies are within the executive’s power to control. Legally speaking, then, the Biden administration’s right to end Title 42 (and other punitive immigration programs) is primarily treated as a question not about the rights of migrants, but about the federal government’s authority. That outcome would be convenient for the administration, because it maximizes their continuing authority to do what they please at the border. Meanwhile, legal challenges to such policies that are based on a migrant’s right to safety, fairness and freedom tend to encounter many more obstacles in court.

As long as we continue to accept as reasonable a system that captures, tags and prosecutes unarmed, peaceful people in the middle of their travels, the end of Title 42 — assuming it ever actually happens — will not be much of an end of anything. Border programs will continue to use the pretext of political expedience to punish people seeking asylum.