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Title 42 needs to go away
But Congress needs to replace it with immigration reform
The pandemic is officially over but some vestiges remain. By that, I don’t mean that mask mandates are still around or that an authoritarian healthcare regime is in force. Where those fears were ever rooted in reality, they have retreated. What I’m talking about is Title 42.
Title 42, which is itself going away, is one of those topics that blur partisan lines. Where Republicans have typically argued for rolling back pandemic emergency measures, Title 42 is a big exception.
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Title 42 is a Trump-era pandemic emergency policy that allows illegal immigrants to be quickly expelled. The policy essentially bypasses existing laws that allow illegal border crossers to request asylum. The policy gets its name from Title 42 of the US legal code, which contains public health laws.
As the Wall Street Journal explains, under Trump’s policy the majority of migrants were quickly returned to Mexico after Border Patrol agents took their names and fingerprints. The policy was aimed at preventing migrants from being held in detention centers in order to prevent the spread of COVID-19, however, some migrants were also transported by air back to their home countries. Both the Biden and the Trump Administration used the policy.
In 2020, the Journal reported that the policy had originated in the CDC, but that officials there had argued against it. Internal documents showed that the policy was driven not by public health concerns but was, in reality, an attempt to use the public health situation to advance the Trump Administration’s anti-immigration policies. The key here is that Trump Administration officials did not look for alternatives such as quarantines that would still have allowed immigrants to make their asylum claims.
In other words, the Trump Adminstration took Rahm Emanuel’s advice and didn’t let the crisis go to waste.
Since the policy was introduced, Customs and Border Patrol data show that apprehensions of families and unaccompanied minors along the Mexican border have flattened, but numbers for single adults have more than tripled. This seems to be partly because families and children are likely to make the crossing to ask for asylum, but it may also be that returning single adults across the border to Mexico makes it tempting to try again.
If a migrant goes through the full deportation process, they are usually repatriated back to their home country. To make another attempt to enter the US, they would have to trek across Central America and Mexico. Under Title 42, however, it’s just another quick trip across the border.
Repatriating to home countries takes time and few countries will accept noncitizens who are being deported from the US. Mexico is one of the few countries that will accept deportees from countries such as Cuba, Haiti, Nicaragua, and Venezuela.
No one knows exactly what will happen when Title 42 ends, as is expected next week on May 11. The smart money is that there will be an increase in crossing attempts at least in the short term. As someone once opined, the “coyotes” who make their living by trafficking migrants use any change in US policy to encourage more hopefuls to make the attempt to start a new life in the US. That’s salesmanship in action.
Despite charges that President Biden is soft on immigration, he has kept the policy in place for more than two years even though he promised to end it as he campaigned in 2020 and a month after proclaiming an end to the COVID emergency. At various times, the Biden Administration defended the policy in court and even expanded it earlier this year. As the policy ends, Biden is sending an additional 1,500 troops to the southern border to augment security in advance of the expected surge of migrants.
I’m sympathetic to those who are concerned about illegal immigration, but Title 42 needs to end. In the first place, pandemic emergency orders need to go away since the pandemic emergency is over. I oppose either party using emergency rules to facilitate actions that Congress fails to approve.
Second, I have to point out that, under existing law, it is legal to claim asylum after crossing the border illegally. The majority of asylum requests are denied, but that fact should not be used to circumvent the laws granting the right to seek asylum.
If a return to current law sparks a spike in illegal border crossings, that is not Joe Biden’s fault; that’s the fault of the current legal status quo. The proper solution to the problem is for Congress to change the law, not to keep pandemic-era emergency orders in force. If anyone is fuzzy on the constitutional process for passing laws, click here for Schoolhouse Rock’s refresher, and note that it doesn’t mention emergency Executive Orders.
The fundamental problem is that neither side wants to compromise in order to overhaul the immigration system. We could have had immigration reform that included border security triggers for the pathway to legalization for illegal immigrants several times since the turn of the century, but the attempts were usually killed by the anti-“amnesty” crowd.
To them, let me say two things. First, you don’t know what “amnesty” means. Merriam-Webster defines “amnesty” as “a pardon.” That’s not what recent proposals did. Waiting periods, fines, back taxes, and background checks would have been required under recent reform bills, but the anti-immigrant wing of the GOP has bastardized the term to mean “anything short of deportation.” Mass deportations of all illegals in the US will never happen and you wouldn’t like the police state it would create if they did.
Second, if you helped to kill the recent immigration reform bills then you are to blame for the situation on the border because you helped to preserve the status quo. Killing reform bills that aren’t perfect has the real-world effect of keeping our strained and broken immigration system in place.
Many argue that reform should consist of smaller standalone bills that focus on specific topics. That won’t work and I’ll tell you why. Democrats won’t vote for Republican border bills and Republicans won’t vote for Democrat bills that provide pathways to legalization and a streamlined immigration process. Without bipartisan support, these bills cannot pass. The only way to pass either side’s priorities is with a comprehensive bill that has support from both parties.
Congressional math dictates the strategy, not a desire to trick border security advocates into passing reform and then ignoring the border security parts. If the law was going to be ignored anyway, what would be the point in passing a standalone border bill? (And the border is not really open anyway. If it was, we wouldn’t be seeing such large numbers of arrests.)
Title 42 needs to go away. People who oppose other pandemic emergency policies should be logically and morally consistent enough to oppose this one as well.
But Title 42 does need to be replaced. Congress needs to act to fix our broken immigration system. This fix should have four main parts: Border security, visa tracking to prevent overstays, a streamlined immigration system so it doesn’t take decades to immigrate legally, and a pathway to legalization (not necessarily citizenship) for illegal immigrants who are already here and are productive members of society. I’m also open to a guest worker program for people who want to come here to work but don’t necessarily want to relocate here permanently.
The compromise that I’ve outlined above is the only way that the border problem is going to be solved unless one side somehow manages to get a filibuster- and/or veto-proof supermajority.
Immigration reform is not an insurmountable problem. We can solve it if the radicals on both sides will get out of the way. The insurmountable problem is that I don’t believe the radicals want the immigration problem solved because then there will be one less topic for their demagoguery and fundraising appeals. That’s a much tougher problem to solve.
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